32National Defense52003-07-012003-07-01falseDepartment of Defense (Continued)ASubtitle ANational DefenseSubtitle A—Department of Defense (Continued)CHAPTER VI—DEPARTMENT OF THE NAVYSUBCHAPTER A—UNITED STATES NAVY REGULATIONS AND OFFICIAL RECORDSPartPage700United States Navy regulations and official records9701Availability of Department of the Navy records and publication of Department of the Navy documents affecting the public45705Public affairs regulations134SUBCHAPTER B—NAVIGATION706Certifications and exemptions under the International Regulations for Preventing Collisions at Sea, 1972173707Special rules with respect to additional station and signal lights184SUBCHAPTER C—PERSONNEL716Death gratuity186718Missing Persons Act191719Regulations supplementing the manual for courts-martial194720Delivery of personnel; service of process and subpoenas; production of official records207721-722[Reserved]723Board for Correction of Naval Records224724Naval Discharge Review Board231725Release of official information for litigation purposes and testimony by Department of the Navy personnel264726Payments of amounts due mentally incompetent members of the Naval service278727Legal assistance280728Medical and dental care for eligible persons at Navy medical department facilities285732Nonnaval medical and dental care349733Assistance to and support of dependents; paternity complaints363734Garnishment of pay of Naval military and civilian personnel for collection of child support and alimony370735Reporting births and deaths in cooperation with other agencies372SUBCHAPTER D—PROCUREMENT, PROPERTY, PATENTS, AND CONTRACTS736Disposition of property374744Policies and procedures for the protection of proprietary rights in technical information proposed for release to foreign governments378746Licensing of government inventions in the custody of the Department of the Navy379SUBCHAPTER E—CLAIMS750General claims regulations385751Personnel claims regulations409752Admiralty claims438755Claims for injuries to property under Article 139 of the Uniform Code of Military Justice441756Nonappropriated-fund claims regulations444757Affirmative claims regulations446SUBCHAPTER F—ISLANDS UNDER NAVY JURISDICTION761Naval Defensive Sea Areas; Naval Airspace Reservations, areas under Navy administration, and the Trust Territory of the Pacific Islands455762[Reserved]763Rules governing public access467SUBCHAPTER G—MISCELLANEOUS RULES765Rules applicable to the public470766Use of Department of the Navy aviation facilities by civil aircraft474767Application guidelines for archeological research permits on ship and aircraft wrecks under the jurisdiction of the Department of the Navy484768-769[Reserved]770Rules limiting public access to particular installations488771-774[Reserved]775Procedures for implementing the National Environmental Policy Act499776Professional conduct of attorneys practicing under the cognizance and supervision of the Judge Advocate General507777-799[Reserved]Cross References:

Panama Canal: See 35 CFR chapter I.

National Oceanic and Atmospheric Administration, Department of Commerce: See 15 CFR chapter IX.

32 CFR Ch. VI (7-1-03 Edition)Department of the Navy, DoDSUBCHAPTER A—UNITED STATES NAVY REGULATIONS AND OFFICIAL RECORDSPt. 700PART 700—UNITED STATES NAVY REGULATIONS AND OFFICIAL RECORDSSubpart A—Navy RegulationsSec.700.101Origin and history of United States Navy Regulations.700.102Statutory authority for issuance of United States Navy Regulations.700.103Purpose and effect of United States Navy Regulations.700.104Statutory authority for prescription of other regulations.700.105Issuance of directives by other officers and officials.700.106Control of administrative requirements.700.107Maintenance of Navy Regulations.Subpart B—The Department of the Navy700.201Origin and authority of the Department of the Navy.700.202Mission of the Department of the Navy.700.203Composition.700.204The principal elements of the Department of the Navy.Subpart C—The Secretary of the NavyThe Secretary of the Navy700.301Responsibilities of the Secretary of the Navy.700.302Responsibilities within the Department of the Navy.700.303Succession.700.304Recommendations to Congress.700.305Assignment of functions.700.306Assignment of duty and titles.700.307Powers with respect to the Coast Guard.The Office of the Secretary of the Navy700.310Composition.700.311Sole responsibilities.700.312Authority over organizational matters.The Office of the Secretary of the Navy/The Civilian Executive Assistants700.320The Civilian Executive Assistants.700.321The Under Secretary of the Navy.700.322Assistant Secretaries of the Navy; statutory authorization.700.323The Assistant Secretary of the Navy (Financial Management).700.324The Assistant Secretary of the Navy (Manpower and Reserve Affairs).700.325The Assistant Secretary of the Navy (Installations and Environment).700.326The Assistant Secretary of the Navy (Research, Development and Acquisition).700.327The General Counsel of the Navy.The Office the Secretary of the Navy/The Staff Assistants700.330The Staff Assistants.700.331The Judge Advocate General.700.332The Naval Inspector General.700.333The Chief of Naval Research.700.334The Chief of Information.700.335The Chief of Legislative Affairs.700.336The Director, Office of Program Appraisal.700.337The Auditor General.Subpart D—The Chief of Naval Operations700.401Precedence.700.402Succession.700.403Statutory authority and responsibility of the Chief of Naval Operations.700.404Statutory authority and responsibility of the Office of the Chief of Naval Operations.700.405Delegated authority and responsibility.700.406Naval Vessel Register, classification of naval craft, and status of ships and service craft.Subpart E—The Commandant of the Marine Corps700.501Precedence.700.502Succession.700.503Statutory authority and responsibility of the Commandant of the Marine Corps.700.504Statutory authority and responsibility of the Headquarters, Marine Corps.700.505Delegated authority and responsibility.Subpart F—The United States Coast Guard (When Operating as a Service of the Navy)700.601Relationship and operation as a service in the Navy.700.602The Commandant of the Coast Guard.700.603Duties and responsibilities.Subpart G—Commanders in Chief and Other CommandersTitles and Duties of Commanders700.701Titles of commanders.700.702Responsibility and authority of commanders.700.703To announce assumption of command.700.704Readiness.700.705Observance of international law.700.706Keeping immediate superiors informed.Staffs of Commanders700.710Organization of a staff.700.711Authority and responsibilities of officers of a staff.Administration and Discipline700.720Administration and discipline: Staff embarked.700.721Administration and discipline: Staff based ashore.700.722Administration and discipline: Staff unassigned to an administrative command.700.723Administration and discipline: Separate and detached command.Subpart H—The Commanding OfficerCommanding Officers in General700.801Applicability.700.802Responsibility.700.804Organization of commands.700.809Persons found under incriminating circumstances.700.810Rules for visits.700.811Dealers, tradesmen, and agents.700.812Postal matters.700.815Deaths.700.816The American National Red Cross.700.819Records.700.822Delivery of personnel to civil authorities and service of subpoena or other process.700.826Physical security.700.827Effectiveness for service.700.828Search by foreign authorities.700.832Environment pollution.700.834Care of ships, aircraft, vehicles and their equipment.700.835Work, facilities, supplies, or services for other Government departments, State or local governments, foreign governments, private parties and morale, welfare, and recreational activities.Commanding Officers Afloat700.840Unauthorized persons on board.700.841Control of passengers.700.842Authority over passengers.700.844Marriages on board.700.845Maintenance of logs.700.846Status of logs.700.847Responsibility of a master of an in-service ship of the Military Sealift Command.700.848Relations with merchant seamen.700.855Status of boats.700.856Pilotage.700.857Safe navigation and regulations governing operation of ships and aircraft.700.859Quarantine.700.860Customs and immigration inspections.Special Circumstances/Ships in Naval Stations and Shipyards700.871Responsibility for safety of ships and craft at a naval station or shipyard.700.872Ships and craft in drydock.700.873Inspection incident to commissioning of ships.Special Circumstances/Prospective Commanding Officers700.880Duties of the prospective commanding officer of a ship.Subpart I—The Senior Officer PresentContents700.901The senior officer present.700.902Eligibility for command at sea.700.903Authority and responsibility.700.904Authority of senior officer of the Marine Corps present.700.922Shore patrol.700.923Precautions for health.700.924Medical or dental aid to persons not in the naval service.700.934Exercise of power of consul.700.939Granting of asylum and temporary refuge.Subpart J—Precedence, Authority and CommandAuthority700.1020Exercise of authority.700.1026Authority of an officer who succeeds to command.700.1038Authority of a sentry.Detail to Duty700.1052Orders to active service.700.1053Commander of a task force.700.1054Command of a naval base.700.1055Command of a naval shipyard.700.1056Command of a ship.700.1057Command of an air activity.700.1058Command of a submarine.700.1059Command of a staff corps activity.Subpart K—General RegulationsStandards of Conduct700.1101Demand for court-martial.700.1113Endorsement of commercial product or process.700.1120Personal privacy and rights of individuals regarding their personal records.Official Records700.1121Disclosure, publication and security of official information.700.1126Correction of naval records.700.1127Control of official records.700.1128Official records in civil courts.Duties of Individuals700.1138Responsibilities concerning marijuana, narcotics, and other controlled substances.700.1139Rules for preventing collisions, afloat and in the air.Rights and Restrictions700.1162Alcoholic beverages.700.1165Fraternization prohibited.700.1166Sexual harassment.700.1167Supremacist activity.Authority:

10 U.S.C. 6011.

Source:

64 FR 56062, Oct. 15, 1999, unless otherwise noted.

Subpart A—Navy Regulations§ 700.101Origin and history of United States Navy Regulations.

(a) United States Navy Regulations began with the enactment by the Continental Congress of the “Rules for the Regulation of the Navy of the United Colonies” on November 28, 1775. The first issuance by the United States Government which covered this subject matter was “An Act for the Government of the Navy of the United States,” enacted on March 2, 1799. This was followed the next year by “An Act for the Better Government of the Navy of the United States.”

(b) In the years preceding the Civil War, twelve successor publications were promulgated under a number of titles by the President, the Navy Department and the Secretary of the Navy. A decision by the Attorney General that the last of the pre-Civil War issuances was invalid led to the inclusion in the 1862 naval appropriations bill of a provision that “the orders, regulations, and instructions heretofore issued by the Secretary of the Navy be, and they are hereby, recognized as the regulations of the Navy Department, subject, however, to such alterations as the Secretary of the Navy may adopt, with the approbation of the President of the United States.”

(c) Thirteen editions of Navy Regulations were published in accordance with this authority (later codified as Section 1547, Revised Statutes) between 1865 and 1948. The 1973 edition of Navy Regulations was published under authority of 10 United States Code (U.S.C.) 6011, which provided that “United States Navy Regulations shall be issued by the Secretary of the Navy with the approval of the President.” In 1981, this provision was amended to eliminate the requirement for presidential approval.

(d) While leaving this provision unaffected, Congress enacted the Goldwater-Nichols Department of Defense Reorganization Act of 1986 (Pub. L. 99-443), which granted each of the service secretaries the authority to prescribe regulations to carry out his or her statutory functions, powers and duties.

§ 700.102Statutory authority for issuance of United States Navy Regulations.

Title 10, United States Code, section 6011, provides that United States Navy Regulations shall be issued by the Secretary of the Navy. Regulations issued under this authority are permanent regulations of general applicability, as opposed to regulations issued by the Secretary under § 700.104.

§ 700.103Purpose and effect of United States Navy Regulations.

United States Navy Regulation is the principle regulatory document of the Department of the Navy, endowed with the sanction of law, as to duty, responsibility, authority, distinctions and relationships of various commands, officials and individuals. Other directives issued within the Department of the Navy shall not conflict with, alter or amend any provision of Navy Regulations.

§ 700.104Statutory authority for prescription of other regulations.

The Secretary of the Navy may prescribe regulations to carry out his or her functions, powers and duties under Title 10, United States Code.

§ 700.105Issuance of directives by other officers and officials.

Responsible officers and officials of the Department of the Navy may issue, or cause to be issued, directives concerning matters over which they exercise command, control or supervision, which do not conflict with, alter or amend these regulations.

§ 700.106Control of administrative requirements.

(a) Directives will be issued with due regard for the imposition of workload resulting therefrom and benefits or advantages to be gained. Issuance of new directives will be in accordance with the following:

(1) Directives which implement or amplify directives from higher authority will not be issued unless absolutely essential.

(2) Administrative reporting requirements will not be imposed unless the expected value of the information to be gained is significantly greater than the cumulative burden imposed.

(b) Each officer or official issuing a directive or imposing a reporting requirement will periodically, in accordance with instructions to be issued by appropriate authority, review such directive or report with a view toward the following:

(1) Reduction of directives by cancellation or consolidation; or

(2) Reduction of reporting requirements by elimination of the report, reduction in the frequency of the report, or combination with other reports.

(c) When issuance of a directive or a tasking will result in imposition of additional administrative requirements on commands not within the chain of command or the issuing authority, the first common superior of the commands affected by the requirement must concur in the issuance.

§ 700.107Maintenance of Navy Regulations.

(a) The Chief of Naval Operations is responsible for maintaining Navy Regulations, and for ensuring that Navy Regulations conforms to the current needs of the Department of the Navy. When any person in the Department of the Navy deems it advisable that additions, changes or deletions should be made to Navy Regulations, he or she shall forward a draft of the proposed addition, change or deletion, with a statement of the reasons therefor, to the Chief of Naval Operations via the chain of command. The Chief of Naval Operations shall endeavor to obtain the concurrence of the Commandant of the Marine Corps, the Judge Advocate General and appropriate offices and commands. Unresolved issues concerning such additions, changes or deletions shall be forwarded to the Secretary of the Navy for appropriate action. Any additions, changes or deletions to the U.S. Navy Regulations must be approved by the Secretary of the Navy.

(b) Changes to Navy Regulations will be numbered consecutively and issued as page changes. Advance changes may be used when required; these will be numbered consecutively and incorporated in page changes at frequent intervals.

Subpart B—The Department of the Navy§ 700.201Origin and authority of the Department of the Navy.

(a) The naval affairs of the country began with the war for independence, the American Revolution. On 13 October 1775, Congress passed legislation for ships. This, in effect, created the continental Navy. Two battalions of Marines were authorized on 10 November 1775. Under the Constitution, the First Congress on 7 August 1789 assigned responsibility for the conduct of naval affairs to the War Department. On 30 April 1798, the Congress established a separate Department of the Navy with the Secretary of the Navy as its chief officer. On 11 July 1798, the United States Marine Corps was established as a separate service, and in 1834 was made a part of the Department of the Navy.

(b) The National Security Act of 1947, as amended, is the fundamental law governing the position of the Department of the Navy in the organization for national defense. In 1949, the Act was amended to establish the Department of Defense as an Executive Department, and to establish the Departments of the Army, Navy and Air Force (formerly established as Executive Departments by the 1947 Act) as military departments within the Department of Defense.

(c) The Goldwater-Nichols Department of Defense Reorganization Act of 1986 further defined the roles of the military departments within the Department of Defense. In addition to establishing the office of Vice Chairman of the Joint Chiefs of Staff, and further emphasizing the operational chain of command, the Act provided detailed statements of the roles of the Secretary of the Navy, the Chief of Naval Operations, the Commandant of the Marine Corps, and their respective principal assistants.

(d) The responsibilities and authority of the Department of the Navy are vested in the Secretary of the Navy, and are subject to reassignment and delegation by the Secretary. The Secretary is bound by the provisions of law, the direction of the President and the Secretary of Defense and, along with all persons in charge of Government agencies, the regulations of certain non-defense agencies addressing their respective areas of functional responsibility.

§ 700.202Mission of the Department of the Navy.

(a) The Navy, within the Department of the Navy, shall be organized, trained, and equipped primarily for prompt and sustained combat incident to operations at sea. It is responsible for the preparation of naval forces necessary for the effective prosecution of war except as otherwise assigned, and, in accordance with integrated joint mobilization plans, for the expansion of the peacetime components of the Navy to meet the needs of war.

(b) The Navy shall develop aircraft, weapons, tactics, technique, organization and equipment of naval combat and service elements. Matters of joint concern as to these functions shall be coordinated between the Army, the Air Force and the Navy.

(c) The Marine Corps, within the Department of the Navy, shall be organized, trained, and equipped to provide fleet marine forces of combined arms, together with supporting air components, for service with the fleet in the seizure or defense of advanced naval bases and for the conduct of such land operations as may be essential to the prosecution of a naval campaign. In addition, the Marine Corps shall provide detachments and organizations for service on armed vessels of the Navy, shall provide security detachments for the protection of naval property at naval stations and bases, and shall perform such other duties as the President may direct. However, these additional duties may not detract from or interfere with the operations for which the Marine Corps is primarily organized.

(d) The Marine Corps shall develop, in coordination with the Army and the Air Force, those phases of amphibious operations that pertain to the tactics, technique and equipment used by landing forces.

(e) The Marine Corps is responsible, in accordance with integrated joint mobilization plans, for the expansion of peacetime components of the Marine Corps to meet the needs of war.

§ 700.203Composition.

(a) The Department of the Navy is separately organized under the Secretary of the Navy. It operates under the authority, direction and control of the Secretary of Defense.

(b) The Department of the Navy is composed of the following:

(1) The Office of the Secretary of the Navy;

(2) The Office of the Chief of Naval Operations;

(3) The Headquarters, Marine Corps;

(4) The entire operating forces, including naval aviation, of the Navy and of the Marine Corps, and the reserve components of those operating forces;

(5) All field activities, headquarters, forces, bases, installations, activities and functions under the control or supervision of the Secretary of the Navy; and

(6) The Coast Guard when it is operating as a service in the Navy.

§ 700.204The principal elements of the Department of the Navy.

(a) The Department of the Navy consists of three elements; the Navy Department, the Operating Forces of the Navy and the Marine Corps, and the Shore Establishment.

(b) The Navy Department refers to the central executive offices of the Department of the Navy located at the seat of Government. The Navy Department is organizationally comprised of the Office of the Secretary of the Navy, the Office of the Chief of Naval Operations, and the Headquarters, Marine Corps. In addition, the Headquarters, Coast Guard, is included when the Coast Guard is operating as a service in the Navy.

(c) The operating forces of the Navy and the Marine Corps comprise the several fleets, seagoing forces, Fleet Marine Forces, other assigned Marine Corps Forces, the Military Sealift Command and other forces and activities that may be assigned thereto by the President or the Secretary of the Navy.

(d) The shore establishment is comprised of shore activities with defined missions approved for establishment by the Secretary of the Navy.

Subpart C—The Secretary of the NavyThe Secretary of the Navy§ 700.301Responsibilities of the Secretary of the Navy.

The Secretary of the Navy is responsible to the Secretary of Defense for:

(a) The functioning and efficiency of the Department of the Navy;

(b) The formulation of policies and programs by the Department of the Navy that are fully consistent with national security objectives and policies established by the President or the Secretary of Defense;

(c) The effective and timely implementation of policy, program and budget decisions and instructions of the President or the Secretary of Defense relating to the functions of the Department of the Navy;

(d) Carrying out the functions of the Department of the Navy so as to fulfill (to the maximum extent practicable) the current and future operational requirement of the unified and specified combatant commands;

(e) Effective cooperation and coordination between the Department of the Navy and the other military departments and agencies of the Department of Defense to provide for more effective, efficient and economical administration and eliminate duplication;

(f) The presentation and justification of the position of the Department of the Navy on the plans, programs and policies of the Department of Defense;

(g) The effective supervision and control of the intelligence activities of the Department of the Navy; and

(h) Such other activities as may be prescribed by law or by the president or Secretary of Defense.

§ 700.302Responsibilities within the Department of the Navy.

The Secretary is the head of the Department of the Navy. The Secretary is responsible for, and has the authority necessary to conduct, all affairs of the Department of the Navy, including the following functions:

(a) Recruiting;

(b) Organizing;

(c) Supplying;

(d) Equipping (including research and development);

(e) Training;

(f) Servicing;

(g) Mobilizing;

(h) Demobilizing;

(i) Administering (including the morale and welfare of personnel);

(j) Maintaining;

(k) The construction, outfitting and repair of military equipment; and

(l) The construction, maintenance and repair of buildings, and interests in real property necessary to carry out the responsibilities specified in this article.

§ 700.303Succession.

If the Secretary of the Navy dies, resigns, is removed from office, is absent or is disabled, the person who is highest on the following list, and who is not absent or disabled, shall perform the duties of the Secretary until the President directs another person to perform those duties or until the absence or disability ceases:

(a) The Under Secretary of the Navy;

(b) The Assistant Secretaries of the Navy, in the order prescribed by the Secretary of the Navy and approved by the Secretary of Defense;

(c) The Chief of Naval Operations;

(d) The Commandant of the Marine Corps.

§ 700.304Recommendations to Congress.

After first informing the Secretary of Defense, the Secretary of the Navy may make such recommendations to Congress relating to the Department of Defense as he or she considers appropriate.

§ 700.305Assignment of functions.

The Secretary of the Navy may assign such functions, powers, and duties as he or she considers appropriate to the Under Secretary of the Navy and to the Assistant Secretaries of the Navy. Officers of the Navy and the Marine Corps shall, as directed by the Secretary, report on any matter to the Secretary, the Under Secretary or any Assistant Secretary.

§ 700.306Assignment of duty and titles.

The Secretary of the Navy may:

(a) Assign, detail and prescribe the duties of members of the Navy and Marine Corps and civilian personnel of the Department of the Navy; and

(b) Change the title of any officer or activity of the Department of the Navy not prescribed by law.

§ 700.307Powers with respect to the Coast Guard.

Whenever the Coast Guard operates as a service in the Navy under Section 3 of Title 14, United States Code, the Secretary of the Navy has the same powers and duties with respect to the Coast Guard as the Secretary of Transportation has when the Coast Guard is not so operating.

The Office of the Secretary of the Navy§ 700.310Composition.

The function of the Office of the Secretary of the Navy is to assist the Secretary in carrying out his or her responsibilities. The Office of the Secretary of the Navy is composed of the following:

(a) The Civilian Executive Assistants:

(1) The Under Secretary of the Navy;

(2) The Assistant Secretary of the Navy (Financial Management);

(3) The Assistant Secretary of the Navy (Manpower and Reserve Affairs);

(4) The Assistant Secretary of the Navy (Research, Development and Acquisition);

(5) The Assistant Secretary of the Navy (Installations and Environment); and

(6) The General Counsel of the Department of the Navy.

(b) The Staff Assistants:

(1) The Judge Advocate General of the Navy;

(2) The Naval Inspector General;

(3) The Chief of Naval Research;

(4) The Chief of Information;

(5) The Chief of Legislative Affairs;

(6) The Auditor General of the Navy;

(7) The Director, Office of Program Appraisal; and

(8) Such other officers and officials as may be established by law or as the Secretary of the Navy may establish or designate.

§ 700.311Sole responsibilities.

(a) The Office of the Secretary of the Navy shall have sole responsibility within the Office of the Secretary of the Navy, the Office of the Chief of Naval Operations and the Headquarters, Marine Corps, for the following functions:

(1) Acquisition;

(2) Auditing;

(3) Comptroller (including financial management);

(4) Information management;

(5) Inspector general;

(6) Legislative affairs;

(7) Public affairs;

(8) Research and development, except for military requirements and operational test and evaluation, which are the responsibilities of the Office of the Chief of Naval Operations and the Headquarters Marine Corps.

(b) The following offices within the Office of the Secretary of the Navy are designated to conduct the functions specified in paragraph (a) of this section. No office or other entity may be established or designated within the Office of the Chief of Naval Operations or the Headquarters, Marine Corps, to conduct any of the functions specified in paragraph (a) of this section, except as noted in paragraph (a)(8) of this section.

(1) The Assistant Secretary of the Navy (Research, Development and Acquisition) is the Acquisition Executive for the Department of the Navy. The Assistant Secretary of the Navy (Research, Development and Acquisition) (ASN(RD&A)) is responsible for research, development and acquisition, except for military requirements and operational test and evaluation, which remain functions of the Office of the Chief of Naval Operations and Headquarters Marine Corps. In addition to Acquisition Executive, ASN(RD&A) is also the Navy Senior Procurement Executive and Senior Department of the Navy Information Resource Management Official. Responsibilities include developing acquisition policy and procedures for all Department of the Navy research, development, production, shipbuilding and production/logistics support programs; and Department of the Navy international technology transfer.

(2) The Auditor General is responsible for the internal auditing function within the Department of the Navy.

(3) The Assistant Secretary of the Navy (Financial Management) is responsible for comptrollership, including financial management, within the Department of the Navy.

(4) The Naval Inspector General is responsible for the inspector general function within the Department of the Navy.

(5) The Chief of Legislative Affairs is responsible for legislative affairs within the Department of the Navy.

(6) The Chief of Information is responsible for public affairs within the Department of the Navy.

(c) The Secretary shall:

(1) Prescribe the relationship of each office or other entity established or designated under paragraph (b) of this section:

(i) To the Chief of Naval Operations and the Office of the Chief of Naval Operations: and

(ii) To the Commandant of the Marine Corps and the Headquarters, Marine Corps; and

(2) Ensure that each such office or entity provides the Chief of Naval Operations and the Commandant of the Marine Corps such staff support as the Chief of Naval Operations and the Commandant of the Marine Corps consider necessary to perform their respective duties and responsibilities.

(d) The vesting in the Office of the Secretary of the Navy of the responsibility for the conduct of a function specified in paragraph (a) of this section does not preclude other elements of the Department of the Navy (including the Office of the Chief of Naval Operations and the Headquarters, Marine Corps) from providing advice or assistance to the Chief of Naval Operations and the Commandant of the Marine Corps, or otherwise participating in that function within the executive part of the Department under the direction of the office assigned responsibility for that function in the Office of the Secretary of the Navy.

§ 700.312Authority over organizational matters.

Subject to the approval or guidance of the Secretary of the Navy, the Civilian Executive Assistants, the Chief of Naval Operations, the Commandant of the Marine Corps and the Staff Assistants are individually authorized to organize, assign and reassign responsibilities within their respective commands or offices, including the establishment and disestablishment of such component organizations as may be necessary, subject to the following:

(a) The authority to disestablish may not be exercised with respect to any organizational component of the Department established by law.

(b) The Secretary retains the authority to approve the establishment and disestablishment of shore activities.

The Office of the Secretary of the Navy/The Civilian Executive Assistants§ 700.320The Civilian Executive Assistants.

(a) The Civilian Executive Assistants, as identified in § 700.310, are assigned department-wide responsibilities essential to the efficient administration of the Department of the Navy.

(b) Each Civilian Executive Assistants, within his or her assigned area of responsibility, is the principal civilian advisor and assistant to the Secretary on the administration of the affairs of the Department of the Navy. The Civilian Executive Assistants carry out their duties with the professional assistance of the Office of the Chief of Naval Operations and Headquarters, Marine Corps, as presided over by the Chief of Naval Operations and Commandant of the Marine Corps, respectively.

(c) The Civilian Executive Assistants are authorized and directed to act for the Secretary within their assigned areas of responsibility.

§ 700.321The Under Secretary of the Navy.

(a) The Under Secretary of the Navy shall perform such duties and exercise such powers as the Secretary of the Navy shall prescribe.

(b) The Under Secretary of the Navy is designated as the deputy and principal assistant to the Secretary of the Navy. The Under Secretary of the Navy acts with full authority of the Secretary in the general management of the Department of the Navy and supervision of offices, organizations and functions as assigned by the Secretary.

§ 700.322Assistant Secretaries of the Navy; statutory authorization.

There are four Assistant Secretaries of the Navy. The Assistant Secretaries shall perform such duties and exercise such powers as the Secretary of the Navy may prescribe in accordance with law.

§ 700.323The Assistant Secretary of the Navy (Financial Management).

The Assistant Secretary of the Navy (Financial Management) is the Comptroller of the Navy, and is responsible for all matters related to the financial management of the Department of the Navy, including:

(a) Budgeting;

(b) Accounting;

(c) Disbursing;

(d) Financing;

(e) Internal review;

(f) Progress and statistical reporting; and

(g) Supervision of offices and organizations as assigned by the Secretary of the Navy.

The Assistant Secretary of the Navy (Manpower and Reserve Affairs) is responsible for:

(a) The overall supervision of manpower and reserve component affairs of the Department of the Navy, including policy and administration of affairs related to military (active and inactive) and civilian personnel; and

(b) Supervision of offices and organizations as assigned by the Secretary, specifically the Naval Council of Personnel Boards and the Board for Correction of Naval Records.

§ 700.325The Assistant Secretary of the Navy (Installations and Environment).

The Assistant Secretary of the Navy (Installations and Environment) is responsible for:

§ 700.326The Assistant Secretary of the Navy (Research, Development and Acquisition).

The Assistant Secretary of the Navy (Research, Development and Acquisition) is responsible for:

(a) Research, development and acquisition, except for military requirements and operational test and evaluation;

(b) Direct management of acquisition programs;

(c) All aspects of the acquisition process within the Department of the Navy;

(d) All acquisition policy, including technology base and advanced technology development, procurement, competition, contracts and business management, logistics, product integrity, and education and training of the acquisition workforce.

§ 700.327The General Counsel of the Navy.

(a) The General Counsel is head of the Office of the General Counsel and is responsible for providing legal advice, counsel, and guidance within the Department of the Navy on the following matters:

(2) Procurement of services, including the fiscal, budgetary and accounting aspects, for the Navy and Marine Corps;

(3) Litigation involving the issues enumerated above; and

(4) Other matters as directed by the Secretary of the Navy.

(b) The General Counsel maintains a close working relationship with the Judge Advocate General on all matters of common interest.

The Office of the Secretary of the Navy/The Staff Assistants§ 700.330The Staff Assistants.

The Staff Assistants, as identified in § 700.310, assist the Secretary of the Navy, or one or more of the Civilian Executive Assistants, in the administration of the Navy. They supervise all functions and activities internal to their offices and assigned field activities, if any, and are responsible to the Secretary or to one of the Civilian Executive Assistants for the utilization of resources by, and the operating efficiency of, all activities under their supervision or command. Their duties are as provided by law or as assigned by the Secretary.

§ 700.331The Judge Advocate General.

(a) The Judge Advocate General of the Navy commands the Office of the Judge Advocate General and is the Chief of the Judge Advocate General's Corps. The Judge Advocate General:

(1) Provides or supervises the provision of all legal advice and related services throughout the Department of the Navy, except for the advice and services provided by the General Counsel;

(2) Performs the functions required or authorized by law;

(3) Provides legal and policy advice to the Secretary of the Navy on military justice, administrative law, claims, operational and international law, and litigation involving these issues; and

(4) Acts on other matters as directed by the Secretary.

(b) The Judge Advocate General maintains a close working relationship with the General Counsel on all matters of common interest.

§ 700.332The Naval Inspector General.

(a) Under the direction of the Secretary of the Navy, the Naval Inspector General:

(1) Inspects, investigates or inquires into any and all matters of importance to the Department of the Navy with particular emphasis on readiness, including, but not limited to effectiveness, efficiency, economy and integrity;

(2) Exercises broad supervision, general guidance and coordination for all Department of the Navy inspection, evaluation and appraisal organizations to minimize duplication of efforts and the number of necessary inspections;

(3) Through analysis of available information, identifies areas of weakness in the Department of the Navy as they relate to matters of integrity and efficiency and provides appropriate recommendations for improvement. To accomplish these functions, the Inspector General shall have unrestricted access, by any means, to any information maintained by any naval activity deemed necessary, unless specifically restricted by the Secretary of the Navy;

(4) Receives allegations of inefficiency, misconduct, impropriety, mismanagement or violations of law, and investigates or refers such matters for investigation, as is appropriate; and

(5) Serves as principal advisor to the Secretary of the Navy, the Chief of Naval Operations and the Commandant of the Marine Corps on all inspection and investigation matters.

(b) In addition, the Naval Inspector General has various functions, including (but not limited to):

(1) Providing of an alternative to the normal chain of command channel for receipt of complaints of personnel;

(2) Serving as the official to whom employees may complain without fear of reprisal;

(3) Cooperating with the Inspector General, Department of Defense;

(4) Providing oversight of intelligence and special activities;

(5) Serving as the Department of the Navy coordinator for fraud, waste and efficiency matters;

(6) Serving as Navy Program Manager and focal point for the Department of the Navy and Navy Hotline programs; and

(7) Designation as the centralized organization within the Department of Defense to monitor and ensure the coordination of criminal, civil, administrative and contractual remedies for all significant cases, including investigation of fraud or corruption related to procurement activities affecting the Department of the Navy.

§ 700.333The Chief of Naval Research.

(a) The Chief of Naval Research shall command the Office of the Chief of Naval Research, the Office of Naval Research, the Office of Naval Technology and assigned shore activities.

(b) The Office of Naval Research shall perform such duties as the Secretary of the Navy prescribes relating to:

(2) The conduct of naval research in augmentation of and in conjunction with the research and development conducted by other agencies and offices of the Department of the Navy; and

(3) The supervision, administration and control of activities within or for the Department of the Navy relating to patents, inventions, trademarks, copyrights and royalty payments, and matters connected therewith.

§ 700.334The Chief of Information.

(a) The Chief of Information is the direct representative of the Secretary of the Navy in all public affairs and internal relations matters. The Chief of Information is authorized to implement Navy public affairs and internal relations policies and to coordinate those Navy and Marine Corps activities of mutual interest.

(b) The Chief of Naval Operations and the Commandant of the Marine Corps are delegated responsibilities for:

(2) Conduct of their respective services’ community relations programs; and

(3) Implementing the Secretary of the Navy's public affairs policy and directives.

(c) The Chief of Information will report to the Chief of Naval Operations for support of the responsibilities outlined in paragraph (b) of this section, and will provide such staff support as the Chief of Naval Operations considers necessary to perform those duties and responsibilities.

(d) The Deputy Chief of Information for Marine Corps Matters may report directly to the Secretary regarding public information matters related solely to the Marine Corps. The Deputy Chief will promptly inform the Chief of Information regarding the substance of all independent contacts with the Secretary pertaining to Marine Corps matters. The Deputy Chief of Information for Marine Corps Matters will report to the Commandant of the Marine Corps for support of the responsibilities outlined in paragraph (b) of this section, and will provide such staff support as the Commandant considers necessary to perform those duties and responsibilities.

§ 700.335The Chief of Legislative Affairs.

The mission of the Chief of Legislative Affairs is to:

(a) Plan, develop and coordinate relationships between representatives of the Department of the Navy and members of committees of the United States Congress and their staffs which are necessary in the transaction of official Government business (except appropriations matters) affecting the Department of the Navy; and

(b) Furnish staff support, advice and assistance to the Secretary of the Navy, the Chief of Naval Operations, the Commandant of the Marine Corps and all other principal civilian and military officials of the Department of the Navy concerning congressional aspects of the Department of the Navy policies, plans and programs (except appropriations matters).

§ 700.336The Director, Office of Program Appraisal.

(a) The Director, Office of Program Appraisal, directs, under the immediate supervision of the Secretary of the Navy, the Office of Program Appraisal.

(b) The Office of Program Appraisal will assist the Secretary in assuring that existing and proposed Navy and Marine Corps programs provide the optimum means of achieving the objectives of the Department of the Navy.

§ 700.337The Auditor General.

(a) The Auditor General of the Navy is responsible for:

(1) Serving as Director of the Naval Audit Service; and

(2) Developing and implementing Navy internal audit policies, programs and procedures within the framework of Government auditing standards.

(b) The Auditor General can provide information and may provide assistance and support to the Chief of Naval Operations and the Commandant of the Marine Corps to enable them to discharge their duties and responsibilities.

Subpart D—The Chief of Naval Operations§ 700.401Precedence.

The Chief of Naval Operations, while so serving, has the grade of admiral. In the performance of duties within the Department of the Navy, the Chief of Naval Operations takes precedence above all other officers of the naval service, except an officer of the naval service who is serving as Chairman or Vice Chairman of the Joint Chiefs of Staff.

§ 700.402Succession.

When there is a vacancy in the position of Chief of Naval Operations, or during the absence or disability of the Chief of Naval Operations:

(a) The Vice Chief of Naval Operations shall perform the duties of the Chief of Naval Operations until a successor is appointed or the absence or disability ceases.

(b) If there is a vacancy in the position of Vice Chief of Naval Operations or the Vice Chief of Naval Operations is absent or disabled, unless the President directs otherwise, the most senior officer of the Navy in the Office of the Chief of Naval Operations who is not absent or disabled and who is not restricted in the performance of duty shall perform the duties of the Chief of Naval Operations until a successor to the Chief of Naval Operations or the Vice Chief of Naval Operations is appointed or until the absence or disability of the Chief of Naval Operations or Vice Chief of Naval Operations ceases, whichever occurs first.

§ 700.403Statutory authority and responsibility of the Chief of Naval Operations.

(a) Except as otherwise prescribed by law, and subject to the statutory authority of the Secretary of the Navy to assign functions, powers and duties, the Chief of Naval Operations performs duties under the authority, direction and control of the Secretary of the Navy and is directly responsible to the Secretary.

(b) Subject to the authority, direction and control of the Secretary of the Navy, the Chief of Naval Operations shall:

(1) Preside over the Office of the Chief of Naval Operations;

(2) Transmit the plans and recommendations of the Office of the Chief of Naval Operations to the Secretary and advise the Secretary with regard to such plans and recommendations;

(3) After approval of the plans or recommendations of the Office of the Chief of Naval Operations by the Secretary, act as the agent of the Secretary in carrying them into effect;

(4) Exercise supervision, consistent with the statutory authority assigned to commanders of unified or specified combatant commands, over such of the members and organizations of the Navy and the Marine Corps as the Secretary determines;

(5) Perform the duties prescribed for a member of the Armed Forces Policy Council and other statutory duties; and

(6) Perform such other military duties, not otherwise assigned by law, as are assigned to the Chief of Naval Operations by the President, the Secretary of Defense or the Secretary of the Navy.

(c) The Chief of Naval Operations shall also perform the statutory duties prescribed for a member of the Joint Chiefs of Staff.

(1) To the extent that such action does not impair the independence of the Chief of Naval Operations in the performance of duties as a member of the Joint Chiefs of Staff, the Chief of Naval Operations shall inform the Secretary of the Navy regarding military advice rendered by members of the Joint Chiefs of Staff on matters affecting the Department of the Navy.

(2) Subject to the authority, direction and control of the Secretary of Defense, the Chief of Naval Operations shall keep the Secretary of the Navy fully informed of significant military operations affecting the duties and responsibilities of the Secretary of the Navy.

§ 700.404Statutory authority and responsibility of the Office of the Chief of Naval Operations.

(a) The Office of the Chief of Naval Operations shall furnish professional assistance to the Secretary, the Under Secretary and the Assistant Secretaries of the Navy, and to the Chief of Naval Operations. Under the authority, direction and control of the Secretary of the Navy, the Office of the Chief of Naval Operations shall:

(1) Subject to § 700.311(a), prepare for such employment of the Navy, and for such recruiting, organizing, supplying, equipping (including those aspects of research and development assigned by the Secretary of the Navy), training, servicing, mobilizing, demobilizing, administering, and maintaining of the Navy, as will assist in the execution of any power, duty or function of the Secretary or the Chief of Naval Operations;

(2) Investigate and report upon the efficiency of the Navy and its preparation to support military operations by combatant commands;

(3) Prepare detailed instructions for the execution of approved plans and supervise the execution of those plans and instructions;

(4) As directed by the Secretary or the Chief of Naval Operations, coordinate the action of organizations of the Navy; and

(5) Perform such other duties, not otherwise assigned by law, as may be prescribed by the Secretary.

(b) Except as otherwise specifically prescribed by law, the Office of the Chief of Naval Operations shall be organized in such manner, and its members shall perform such duties and have such titles as the Secretary may prescribe.

§ 700.405Delegated authority and responsibility.

(a) The Chief of Naval Operations is the principal naval advisor and naval executive to the Secretary of the Navy on the conduct of the naval activities of the Department of the Navy.

(b)(1) Internal to the administration of the Department of the Navy, the Chief of Naval Operations, consistent with the statutory authority assigned to commanders of unified or specified combatant commands, under the direction of the Secretary of the Navy, shall command:

(i) The operating forces of the Navy; and

(ii) Such shore activities as may be assigned by the Secretary.

(2) The Chief of Naval Operations shall be responsible to the Secretary of the Navy for the Utilization of resources by, and the operating efficiency of, the Office of the Chief of Naval Operations, the Operating Forces of the Navy and assigned shore activities.

(c) In addition, the Chief of Naval Operations has the following specific responsibilities:

(1) To organize, train, equip, prepare and maintain the readiness of Navy forces, including those for assignment to unified or specified commands, for the performance of military missions as directed by the President, the Secretary of Defense or the Chairman of the Joint Chiefs of Staff;

(2) To determine current and future requirements of the Navy (less Fleet Marine Forces and other assigned Marine Corps forces) for manpower, material, weapons, facilities and services, including the determination of quantities, military performance requirements and times, places and priorities of need;

(3) To exercise leadership in maintaining a high degree of competence among Navy officer, enlisted and civilian personnel in necessary fields of specialization, through education training and equal opportunities for personal advancement, and maintaining the morale and motivation of Navy personnel and the prestige of a Navy career;

(4) To plan and provide health care for personnel of the naval service, their dependents and eligible beneficiaries;

(5) To direct the organization, administration, training and support of the Naval Reserve;

(6) To inspect and investigate components of the Department of the Navy to determine and maintain efficiency, discipline, readiness, effectiveness and economy, except in those areas where such responsibility rests with the Commandant of the Marine Corps;

(7) To determine the requirements of naval forces and activities, to include requirements for research, development, test, and evaluation to plan and provide for the conduct of test and evaluation which are adequate and responsive to long range objectives, immediate requirements, and fiscal limitations; and to provide assistance to the Assistant Secretary of the Navy (Research, Development and Acquisition) in the review and appraisal of the overall Navy program to ensure fulfillment of stated requirements;

(8) To formulate Navy strategic plans and policies and participate in the formulation of Joint and combined strategic plans and policies and related command relationships; and

(9) Subject to guidance from the Assistant Secretary of the Navy (Financial Management), to formulate budget proposals for the Office of the Chief of Naval Operations, the Operating Forces of the Navy and assigned shore activities, and other activities and programs as assigned;

(10) To exercise authority for intelligence within the Navy.

(d) The Chief of Naval Operations, under the direction of the Secretary of the Navy, shall exercise overall authority throughout the Department of the Navy in matters related to:

(1) The effectiveness of the support of the Operating Forces of the Navy and assigned shore activities;

(2) The coordination and direction of assigned Navy wide programs and functions, including those assigned by higher authority;

(3) Matters essential to naval military administration, such as:

(i) Security;

(ii) Discipline;

(iii) Communications; and

(iv) Matters related to the customs and traditions of the naval service.

(4) Except for those areas wherein such responsibility rests with the Commandant of the Marine Corps, the coordination of activities of the Department of the Navy in matters concerning effectiveness, efficiency and economy.

(a) The Chief of Naval Operations shall be responsible for the Naval Vessel Register (except the Secretary of the Navy shall strike vessels from the Register) and the assignment of classification for administrative purposes to water borne craft and the designation of status for each ship and service craft.

(b) Commissioned vessels and craft shall be called “United States Ship” or “U.S.S.”

(c) Civilian manned ships, of the Military Sealift Command or other commands, designated “active status, in service” shall be called “United States Naval Ship” or “U.S.N.S.”

(d) Ships and service craft designated “active status, in service,” except those described by paragraph (c) of this section, shall be referred to by name, when assigned, classification, and hull number (e.g., “HIGHPOINT PCH-1” or “YOGN-8”).

(e) The Chief of Naval Operations shall designate hospital ships and medical aircraft as he or she deems necessary. Such designation shall be in compliance with the Geneva Convention for the Amelioration of the Conditions of Wounded, Sick and Ship wrecked Members of the Armed Forces at Sea of 12 August 1949. The Chief of Naval Operations shall ensure compliance with the notice shall ensure compliance with the notice provisions of that Convention.

Subpart E—The Commandant of the Marine Corps§ 700.501Precedence.

The Commandant of the Marine Corps, while so serving, has the grade of general. In the performance of duties within the Department of the Navy, the Commandant of the Marine Corps takes precedence above all other officers of the Marine Corps, except an officer of the Marine Corps who is serving as Chairman or Vice Chairman of the Joint Chiefs of Staff.

§ 700.502Succession.

When there is a vacancy in the office of Commandant of the Marine Corps, or during the absence or disability of the Commandant:

(a) The Assistant Commandant of the Marine Corps shall perform the duties of the Commandant until a successor is appointed or the absence or disability ceases; or

(b) If there is a vacancy in the office of the Assistant Commandant of the Marine Corps or the Assistant Commandant is absent or disabled, unless the President directs otherwise, the most senior officer of the Marine Corps in the Headquarters, Marine Corps, who is not absent or disabled and who is not restricted in the performance of duty shall perform the duties of the Commandant until a successor to the Commandant or the Assistant Commandant is appointed or until the absence or disability of the Commandant or the Assistant Commandant ceases, whichever occurs first.

§ 700.503Statutory authority and responsibility of the Commandant of the Marine Corps.

(a) Except as otherwise prescribed by law and subject to the statutory authority of the Secretary of the Navy to assign functions, powers and duties, the Commandant of the Marine Corps performs duties under the authority, direction and control of the Secretary of the Navy and is directly responsible to the Secretary.

(b) Subject to the authority, direction and control of the Secretary of the Navy, the Commandant of the Marine Corps shall:

(1) Preside over the Headquarters, Marine Corps;

(2) Transmit the plans and recommendations of the Headquarters, Marine Corps, to the Secretary and advise the Secretary with regard to such plans and recommendations;

(3) After approval of the plans or recommendations of the Headquarters, Marine Corps, by the Secretary, act as the agent of the Secretary in carrying them into effect;

(4) Exercise supervision, consistent with the statutory authority assigned to commanders of unified or specified combatant commands, over such of the members and organizations of the Navy and the Marine Corps as the Secretary determines;

(5) Perform the duties prescribed for a member of the Armed Forces Policy Council and other statutory duties; and

(6) Perform such other military duties, not otherwise assigned by law, as are assigned to the Commandant of the Marine Corps by the President, the Secretary of Defense or the Secretary of the Navy.

(c) The Commandant of the Marine Corps shall also perform the statutory duties prescribed for a member of the Joint Chiefs of Staff.

(1) To the extent that such action does not impair the independence of the Commandant of the Marine Corps in the performance of duties as a member of the Joint Chiefs of Staff, the Commandant of the Marine Corps shall inform the Secretary of the Navy regarding military advice rendered by members of the Joint Chiefs of Staff on matters affecting the Department of the Navy.

(2) Subject to the authority, direction and control of the Secretary of Defense, the Commandant of the Marine Corps shall keep the Secretary of the Navy fully informed of significant military operations affecting the duties and responsibilities of the Secretary of the Navy.

§ 700.504Statutory authority and responsibility of the Headquarters, Marine Corps.

(a) The Headquarters, Marine Corps, shall furnish professional assistance to the Secretary, the Under Secretary and the Assistant Secretaries of the Navy, and to the Commandant of the Marine Corps.

(1) Under the authority, direction and control of the Secretary of the Navy, the Headquarters, Marine Corps shall:

(i) Subject to § 700.311(a), prepare for such employment of the Marine Corps, and for such recruiting, organizing, supplying, equipping (including those aspects of research and development assigned by the Secretary of the Navy), training, servicing, mobilizing, demobilizing, administering, and maintaining of the Marine Corps, as will assist in the execution of any power, duty or function of the Secretary or the Commandant;

(ii) Investigate and report upon the efficiency of the Marine Corps and its preparation to support military operations by combatant commands;

(iii) Prepare detailed instructions for the execution of approved plans and supervise the execution of those plans and instructions;

(iv) As directed by the Secretary or the Commandant, coordinate the action of organizations of the Marine Corps; and

(v) Perform such other duties, not otherwise assigned by law, as may be prescribed by the Secretary.

(2) [Reserved]

(b) Except as otherwise specifically prescribed by law, the Headquarters, Marine Corps, shall be organized in such manner, and its members shall perform such duties and have such titles, as the Secretary may prescribe.

§ 700.505Delegated authority and responsibility.

(a)(1) Internal to the administration of the Department of the Navy, the Commandant of the Marine Corps, consistent with the statutory authority assigned to commanders of unified or specified combatant commands, under the direction of the Secretary of the Navy, shall command:

(i) The operating forces of the Marine Corps; and

(ii) Such shore activities as may be assigned by the Secretary.

(2) The Commandant shall be responsible to the Secretary of the Navy for the utilization of resources by, and the operating efficiency of, all commands and activities under such command.

(b) In addition, the Commandant has the following specific responsibilities:

(1) To plan for and determine the needs of the Marine Corps for equipment, weapons or weapons systems, materials, supplies, facilities, maintenance, and supporting services. This responsibility includes the determination of Marine Corps characteristics of equipment and material to be procured or developed, and the training required to prepare Marine Corps personnel for combat. It also includes the operation of the Marine Corps Material Support System.

(2) Subject to guidance from the Assistant Secretary of the Navy (Financial Management), to formulate budget proposals for the Headquarters, Marine Corps, the Operating Forces of the Marine Corps, and other activities and programs as assigned.

(3) To develop, in coordination with other military services, the doctrines, tactics and equipment employed by landing forces in amphibious operations.

(4) To formulate Marine Corps strategic plans and policies and participate in the formulation of joint and combined strategic plans and policies and related command relationships.

(5) To exercise authority for intelligence within the Marine Corps.

(6) To plan for and determine the present and future needs, both quantitative and qualitative, for manpower, including reserve personnel and civilian personnel, of the United States Marine Corps. This includes responsibility for leadership in maintaining a high degree of competence among Marine Corps officer and enlisted personnel and Marine Corps civilian personnel in necessary fields of specialization through education, training and equal opportunities for personal advancement; and for leadership in maintaining the morale and motivation of Marine Corps personnel and the prestige of a career in the Marine Corps.

[64 FR 56062, Oct. 15, 1999, as amended at 68 FR 2697, Jan. 21, 2003]Subpart F—The United States Coast Guard (When Operating as a Service in the Navy)§ 700.601Relationship and operation as a service in the Navy.

(a) Upon the declaration of war or when the President directs, the Coast Guard shall operate as a service in the Navy, and shall be subject to the orders of the Secretary of the Navy. While so operating as a service in the Navy, and to the extent practicable, Coast Guard operations shall be integrated and uniform with Navy operation.

(b) Whenever the Coast Guard operates as a service in the Navy:

(1) Applicable appropriations of the Coast Guard to cover expenses shall be available for transfer to the Department of the Navy and supplemented, as required, from applicable appropriations of the Department of the Navy;

(2) Personnel of the Coast Guard shall be eligible to receive gratuities, medals and other insignia of honor on the same basis as personnel in the naval service or serving in any capacity with the Navy; and

(3) To the extent practicable, Coast Guard personnel, ships, aircraft and facilities will be utilized as organized Coast Guard units.

§ 700.602The Commandant of the Coast Guard.

(a) The Commandant of the Coast Guard is the senior officer of the United States Coast Guard.

(b) When reporting to the Secretary of the Navy, the Commandant will report to the Chief of Naval Operations.

(c) The Chief of Naval Operations shall represent the Coast Guard before the Joint Chiefs of Staff.

§ 700.603Duties and responsibilities.

In exercising command over the Coast Guard while operating as a service of the Navy, the Commandant shall:

(a) Organize, train, prepare and maintain the readiness of the Coast Guard to function as a specialized service in the Navy for the performance of national defense missions, as directed;

(b) Plan for and determine the present and future needs of the Coast Guard, both quantitative and qualitative, for personnel, including reserve personnel;

(c) Budget for the Coast Guard, except as may be otherwise directed by the Secretary of the Navy;

(d) Plan for and determine the support needs of the Coast Guard for equipment, materials, weapons or combat systems, supplies, facilities, maintenance and supporting services;

(e) Exercise essential military administration of the Coast Guard. This includes, but is not limited to, such matters as discipline, communications, personnel records and accounting, conforming, as practicable, to Navy procedures;

(f) In conjunction with the Director of Naval Intelligence, and the National Intelligence Community, where appropriate, establish and maintain an intelligence and security capability to provide support for the maritime defense zones, port security, narcotics interdiction, anti-terrorist activity, fishery activity, pollution monitoring and other Coast Guard missions;

(g) Enforce or assist in enforcing Federal laws on and under the high seas and waters subject to the jurisdiction of the United States;

(h) Administer, promulgate and enforce regulations for the promotion of safety of life and property on and under the high seas and waters subject to the jurisdiction of the United States. This applies to those matters not specifically delegated by law to some other executive department;

(i) Develop, establish, maintain and operate, with due regard to the requirements of national defense, aids to maritime navigation, ice breaking facilities, for the promotion of safety on, under and over the high seas and waters subject to the jurisdiction of the United States;

(j) Engage in oceanographic surveys in conjunction with the Office of the Oceanographer of the Navy; and

(k) Continue in effect under the Secretary of the Navy those other functions, powers and duties vested in the Commandant by appropriate orders and regulations of the Secretary of Transportation on the day prior to the effective date of transfer of the Coast Guard to the Department of the Navy until specifically modified or terminated by the Secretary of the Navy.

Subpart G—Commanders In Chief and Other CommandersTitles and Duties of Commanders§ 700.701Titles of commanders.

(a) The commander of a principal organization of the operating forces of the Navy, as determined by the Chief of Naval Operations, or the officer who has succeeded to such command as provided elsewhere in these regulations, shall have the title “Commander.” The name of the organization under the command of such an officer shall be added to form his or her official title, e.g., “Commander, U.S. Atlantic Fleet.” Commander, U.S. Atlantic Fleet, Commander, U.S. Pacific Fleet, and Commander, U.S. Naval Forces Europe, may also be referred to as a “Geographic Fleet Commander.”

(b) The commander of each other organization of units of the operating forces of the Navy or marine corps, or organization of units of shore activities, shall have the title “Commander,” “Commandant,” “Commanding General” or other appropriate title. The name of the organization under the command of such an officer shall be added to form his or her official title.

(a) Commanders shall be responsible for the satisfactory accomplishment of the mission and duties assigned to their commands. Their authority shall be commensurate with their responsibilities. Normally, commanders shall exercise authority through their immediate subordinate commanders, but they may communicate directly with any of their subordinates.

(b) Commanders shall ensure that subordinate commands are fully aware of the importance of strong, dynamic leadership and its relationship to the overall efficiency and readiness of naval forces. Commanders shall exercise positive leadership and actively develop the highest qualities of leadership in persons with positions of authority and responsibility throughout their commands.

(c) Subject to orders of higher authority, and subject to the provisions of § 700.106 of these regulations, commanders shall issue such regulations and instructions as may be necessary for the proper administration of their commands.

(d) Commanders shall hold the same relationship to their flagships, or to shore activities of the command in which their headquarters may be located, in regard to internal administration and discipline, as to any other ship or shore activity of their commands.

§ 700.703To announce assumption of command.

(a) Upon assuming command, commanders shall so advise appropriate superiors, and the units of their commands.

(b) When appropriate, commanders shall also advise the following officers and officials located within the area encompassed by the command concerning their assumption of command.

(1) Senior commanders of other United States armed services;

(2) Officials of other federal agencies; and

(3) Officials of foreign governments.

§ 700.704Readiness.

Commanders shall take all practicable steps to maintain their commands in a state of readiness to perform their missions. In conformity with the orders and policies of higher authority, they shall:

(a) Organize the forces and resources under their command and assign duties to their principal subordinate commanders;

(b) Prepare plans for the employment of their forces to meet existing and foreseeable situations;

(c) Collaborate with the commanders of other United States armed services and with appropriate officials of other federal agencies and foreign governments located within the area encompassed by their commands;

(d) Maintain effective intelligence and keep themselves informed of the political and military aspects of the national and international situation;

(e) Make, or cause to be made, necessary inspections to ensure the readiness, effectiveness and efficiency of the components of their commands; and

(f) Develop, in accordance with directives issued by higher authority, training strategies and plans for their commands.

§ 700.705Observance of international law.

At all times, commanders shall observe, and require their commands to observe, the principles of international law. Where necessary to fulfill this responsibility, a departure from other provisions of Navy Regulations is authorized.

(a) The organization of their commands, the prospective and actual movements of the units of their commands, and the location of their headquarters;

(b) Plans for employment of their forces;

(c) The condition of their commands and of any required action pertaining thereto which is beyond their capacity or authority;

(d) Intelligence information which may be of value;

(e) Any battle, engagement or other significant action involving units of their commands;

(f) Any important service or duty performed by persons or units of their commands; and

(g) Unexecuted orders and matters of interest upon being relieved of command.

Staffs of Commanders§ 700.710Organization of a staff.

(a) The term “staff” means those officers and other designated persons assigned to a commander to assist him or her in the administration and operation of his or her command.

(b) The officer detailed as chief of staff and aide to a fleet admiral or admiral normally shall be a vice admiral or a rear admiral. The officer detailed as chief of staff and aide to a vice admiral or rear admiral shall normally be a rear admiral or a captain. The detailing of a vice commander or a deputy to a commander shall be reserved for selected commanders. An officer detailed as chief staff officer to another officer shall normally not be of the same grade as that officer.

(c) The staff shall be organized into such divisions as may be prescribed by the commander concerned or by higher authority. These divisions shall conform in nature and designation, as practicable and as appropriate, to those of the staffs of superiors.

(d) The staff of a flag or general officer may include one or more personal aides.

§ 700.711Authority and responsibilities of officers of a staff.

(a) The chief of staff and aide or chief staff officer, under the commander, shall be responsible for supervising and coordinating the work of the staff and shall be kept informed of all matters pertaining to that work. All persons attached to the staff, except a vice commander or deputy responsible directly to the commander shall be subordinate to the chief of staff and aide or chief staff officer while he or she is executing the duties of that office.

(b) The officers of a staff shall be responsible for the performance of those duties assigned to them by the commander and shall advise the commander on all matters pertaining thereto. In the performance of their staff duties they shall have no command authority of their own. In carrying out such duties, they shall act for, and in the name of, the commander.

In matters of general discipline, the staff of a commander embarked and all enlisted persons serving with the staff shall be subject to the internal regulations and routine of the ship. They shall be assigned regular stations for battle and emergencies. Enlisted persons serving with the staff shall be assigned to the ship for administration and discipline, except in the case of a staff embarked for passage only, and provided in that case that an organization exists and is authorized to act for such purposes.

§ 700.721Administration and discipline: Staff based ashore.

When a staff is based ashore, the enlisted persons serving with the staff shall, when practicable, be assigned to an appropriated activity for purposes of administration and discipline. The staff officers may be similarly assigned. Members of a staff assigned for any purpose to a command or activity shall conform in matters of general discipline to the internal regulations and routine of that command or activity.

§ 700.722Administration and discipline: Staff unassigned to an administrative command.

(a) When it is not practicable to assign enlisted persons serving with the staff of a commander to an established activity for administration and discipline, the commander may designate an officer of the staff to act as the commanding officer of such persons and shall notify the Judge Advocate General and the Commandant of the Marine Corps, or the Chief of Naval Personnel, as appropriate, of such action.

(b) If the designating commander desires the commanding officer of staff enlisted personnel to possess authority to convene courts-martial, the commander should request the Judge Advocate General to obtain such authorization from the Secretary of the Navy.

Any flag or general officer in command, any officer authorized to convene general courts-martial, or the senior officer present may designate organizations which are separate or detached commands. Such officer shall state in writing that it is a separate or detached command and shall inform the Judge Advocate General of the action taken. If authority to convene courts-martial is desired for the commanding officer or officer in charge of such separate or detached command, the officer designating the organization as separate or detached shall request the Judge Advocate general to obtain authorization from the Secretary of the Navy.

In addition to commanding officers, the provisions of this chapter shall apply, where pertinent, to aircraft commanders, officers in charge (including warrant officers and petty officers when so detailed) and those persons standing the command duty.

§ 700.802Responsibility.

(a) The responsibility of the commanding officer for his or her command is absolute, except when, and to the extent, relieved therefrom by competent authority, or as provided otherwise in these regulations. The authority of the commanding officer is commensurate with his or her responsibility. While the commanding officer may, at his or her discretion, and when not contrary to law or regulations, delegate authority to subordinates for the execution of details, such delegation of authority shall in no way relieve the commanding officer of his or her continued responsibility for the safety, well-being, and efficiency of the entire command.

(b) A commanding officer who departs from his or her orders or instructions, or takes official action which is not in accordance with such orders or instructions, does so upon his or her own responsibility and shall report immediately the circumstances to the officer from whom the prior orders or instructions were received. Of particular importance is the commanding officer's duty to take all necessary and appropriate action in self-defense of the command.

(c) The commanding officer shall be responsible for economy within his or her command. To this end the commanding officer shall require from his or her subordinates a rigid compliance with the regulations governing the receipt, accounting, and expenditure of public money and materials, and the implementation of improved management techniques and procedures.

(d) The commanding officer and his or her subordinates shall exercise leadership through personal example, moral responsibility, and judicious attention to the welfare of persons under their control or supervision. Such leadership shall be exercised in order to achieve a positive, dominant influence on the performance of persons in the Department of the Navy.

§ 700.804Organization of commands.

All commands and other activities of the Department of the Navy shall be organized and administered in accordance with law, United States Navy Regulations, and the orders of competent authority. All orders and instructions of the commanding officer shall be in accordance therewith.

§ 700.809Persons found under incriminating circumstances.

(a) The commanding officer shall keep under restraint or surveillance, as necessary, any person not in the armed services of the United States who is found under incriminating or irregular circumstances within the command, and shall immediately initiate an investigation.

(b) Should an investigation indicate that such person is not a fugitive from justice or has not committed or attempted to commit an offense, he shall be released at the earliest opportunity, except:

(1) If not a citizen of the United States, and the place of release is under the jurisdiction of the United States, the nearest federal immigration authorities shall be notified as to the time and place of release sufficiently in advance to permit them to take such steps as they deem appropriate.

(2) Such persons shall not be released in territory not under the jurisdiction of the United States without first obtaining the consent of the proper foreign authorities, except where the investigation shows that he entered the command from territory of the foreign state, or that he is a citizen or subject of that state.

(c) If the investigation indicates that such person has committed or attempted to commit an offense punishable under the authority of the commanding officer, the latter shall take such action as he deems necessary.

(d) If the investigation indicates that such a person is a fugitive from justice, or has committed or attempted to commit an offense which requires actions beyond the authority of the commanding officer, the latter shall, at the first opportunity, deliver such person, together with a statement of the circumstances, to the proper civil authorities.

(e) In all cases under paragraph (d) of this section, a report shall be made promptly to the Chief of Naval Operations or the Commandant of the Marine Corps, as appropriate.

§ 700.810Rules for visits.

(a) Commanding officers are responsible for the control of visitors to their commands and shall comply with the relevant provisions of Department of the Navy concerning classified information and physical security.

(b) Commanding officers shall take such measures and impose such restrictions on visitors as are necessary to safeguard the classified material under their jurisdiction. Arrangements for general visiting shall always be made with due regard for physical security and based on the assumption that foreign agents will be among the visitors.

(c) Commanding officers and others officially concerned shall exercise reasonable care to safeguard the persons and property of visitors to naval activities as well as taking those necessary precautions to safeguard the persons and property within the command.

§ 700.811Dealers, tradesmen, and agents.

(a) In general, dealers or tradesmen or their agents shall not be admitted within a command, except as authorized by the commanding officer:

(1) To conduct public business;

(2) To transact specific private business with individuals at the request of the latter; or

(3) To furnish services and supplies which are necessary and are not otherwise, or are insufficiently, available to the personnel of the command.

(b) Personal commercial solicitation and the conduct of commercial transactions are governed by policies of the Department of Defense.

§ 700.812Postal matters.

Commanding officers shall ensure that mail and postal funds are administered in accordance with instructions issued by the Postmaster General and approved for the naval service by the Chief of Naval Operations, and instructions issued by the Chief of Naval Operations, the Chief of Naval Personnel, or the Commandant of the Marine Corps, as appropriate; and that postal clerks or other persons authorized to handle mail perform their duties strictly in accordance with those instructions.

§ 700.815Deaths.

The commanding officer, in the event of the death of any person within his or her command, shall ensure that the cause of death and the circumstances under which death occurred are established, that the provisions of the Manual of the Judge Advocate General are adhered to in documenting the cause and circumstances, and that the appropriate casualty report is submitted.

§ 700.816The American National Red Cross.

(a) Pursuant to the request of the Secretary of the Navy, and subject to such instructions as the Secretary may issue, the American National Red Cross is authorized to conduct a program of welfare, including social, financial, medical and dental aid, for naval personnel; to assist in matters pertaining to prisoners of war; and to provide such other services as are appropriate functions for the Red Cross. The American National Red Cross is the only volunteer society authorized by the Government to render medical and dental aid to the armed forces of the United States. Other organizations desiring to render medical and dental aid may do so only through the Red Cross.

(b) Requests for Red Cross services shall be made to the Chief of Naval Personnel or the Commandant of the Marine Corps or, in the case of medical services, to the Commander, Naval Medical Command.

(c) Activities and personnel of the American National Red Cross in areas subject to naval jurisdiction shall conform to such administrative regulations as may be prescribed by appropriate naval authority.

(d) Red Cross personnel shall be considered to have the status of commissioned officers, subject to such restrictions as may be imposed by the Chief of Naval Personnel or the Commandant of the Marine Corps.

§ 700.819Records.

The commanding officer shall require that records relative to personnel, material and operations, as required by current instructions, are maintained properly by those responsible therefor.

§ 700.822Delivery of personnel to civil authorities and service of subpoena or other process.

(a) Commanding officers or other persons in authority shall not deliver any person in the naval service to civil authorities except as provided by the Manual of the Judge Advocate General.

(b) Commanding officers are authorized to permit the service of subpoenas or other process as provided by the Manual of the Judge Advocate General.

§ 700.826Physical security.

(a) The commanding officer shall take appropriate action to safeguard personnel, to prevent unauthorized access to installations, equipment, materials and documents, and to safeguard them against acts of sabotage, damage, theft, or terrorism.

(b) The commanding officer shall take action to protect and maintain the security of the command against dangers from fire, windstorms, or other acts of nature.

§ 700.827Effectiveness for service.

The commanding officer shall:

(a) Exert every effort to maintain the command in a state of maximum effectiveness for war or other service consistent with the degree of readiness as may be prescribed by proper authority. Effectiveness for service is directly related to the state of personnel and material readiness; and

(b) Make him or herself aware of the progress of any repairs, the status of spares, repair parts and other components, personnel readiness and other factors or conditions that could lessen the effectiveness of his or her command. When the effectiveness is lessened appreciably, that fact shall be reported to appropriate superiors.

§ 700.828Search by foreign authorities.

(a) The commanding officer shall not permit a ship under his or her command to be searched on any pretense whatsoever by any person representing a foreign state, nor permit any of the personnel within the confines of his or her command to be removed from the command by such person, so long as he has the capacity to repel such act. If force should be exerted to compel submission, the commanding officer is to resist that force to the utmost of his or her power.

(b) Except as may be provided by international agreement, the commanding officer of a shore activity shall not permit his or her command to be searched by any person representing a foreign state, nor permit any of the personnel within the confines of his or her command to be removed from the command by such person, so long as he or she has the power to resist.

§ 700.832Environmental pollution.

The commanding officer shall cooperate with Federal, state and local governmental authorities in the prevention, control and abatement of environmental pollution. If the requirements of any environmental law cannot be achieved because of operational considerations, insufficient resources or other reason, the commanding officer shall report to the immediate superior in the chain of command. The commanding officer shall be aware of existing policies regarding pollution control, and should recommend remedial measures when appropriate.

§ 700.834Care of ships, aircraft, vehicles and their equipment.

The commanding officer shall cause such inspections and tests to be made and procedures carried out as are prescribed by competent authority, together with such others as he or she deems necessary, to ensure the proper preservation, repair, maintenance and operation of any ship, aircraft, vehicle, and their equipment assigned to his or her command.

§ 700.835Work, facilities, supplies, or services for other Government departments, State or local governments, foreign governments, private parties and morale, welfare, and recreational activities.

(a) Work may be done for or on facilities, supplies, or services furnished to departments and agencies of the Federal and State governments, local governments, foreign governments, private parties, and morale, welfare, and recreational activities with the approval of a commanding officer provided:

(1) The cost does not exceed limitations the Secretary of the Navy may approve or specify; and

(2) In the case of private parties, it is in the interest of the government to do so and there is no issue of competition with private industry; and

(3) In the case of foreign governments, a disqualification of a government has not been issued for the benefits of this article.

(b) Work shall not be started nor facilities, supplies, or services furnished morale, welfare, and recreational activities not classified as instrumentalities of the United States, or state or local governments or private parties, until funds to cover the estimated cost have been deposited with the commanding officer or unless otherwise provided by law.

(c) Work shall not be started, nor facilities, supplies, or services furnished other Federal Government departments and agencies, or expenses charged to non-appropriated funds of morale, welfare and recreational activities classified as instrumentalities of the United States, until reimbursable funding arrangements have been made.

(d) Work, facilities, supplies, or services furnished non-appropriated fund activities classified as instrumentalities of the United States in the Navy Comptroller Manual shall be funded in accordance with regulations of the Comptroller of the Navy.

(e) Supplies or services may be furnished to naval vessels and military aircraft of friendly foreign governments (unless otherwise provided by law or international treaty or agreement):

(1) On a reimbursable basis without an advancement of funds, when in the best interest of the United States:

(iii) Miscellaneous supplies (including fuel, provisions, spare parts, and general stores) but not ammunition. Supplies are subject to approval of the cognizant fleet or force commanders when provided overseas.

(iv) With approval of Chief of Naval Operations in each instance, overhauls, repairs, and alterations together with necessary equipment and its installation required in connection therewith, to vessels and military aircraft.

(2) Routine port and airport services may be furnished at no cost to the foreign government concerned where such services are provided by persons of the naval service without direct cost to the Department of the Navy.

(f) In cases of emergency involving possible loss of life or valuable property, work may be started or facilities furnished prior to authorization, or provision for payment, but in all such cases a detailed report of the facts and circumstances shall be made promptly to the Secretary of the Navy or the appropriate authority.

(g) Charges and accounting for any work, supplies, or services shall be as prescribed in the Navy Comptroller Manual.

Commanding Officers Afloat§ 700.840Unauthorized persons on board.

The commanding officer shall satisfy him or herself that there is no unauthorized person on board before proceeding to sea or commencing a flight.

§ 700.841Control of passengers.

(a) Control of passage in and protracted visits to aircraft and ships of the Navy by all persons, within or without the Department of the Navy, shall be exercised by the Chief of Naval Operations.

(b) Nothing in this section shall be interpreted as prohibiting the senior officer present from authorizing the passage in ships and aircraft of the Navy by such persons as he or she judges necessary in the public interest or in the interest of humanity. The senior officer present shall report the circumstances to the Chief of Naval Operations when he or she gives such authorization.

§ 700.842Authority over passengers.

Except as otherwise provided in these regulations or in orders from competent authority, all passengers in a ship or aircraft of the naval service are subject to the authority of the commanding officer and shall conform to the internal regulations and routine of the ship or aircraft. The commanding officer of such ship or aircraft shall take no disciplinary action against a passenger not in the naval service, other than that authorized by law. The commanding officer may, when he or she deems such an action to be necessary for the safety of the ship or aircraft or of any persons embarked, subject a passenger not in the naval service to such restraint as the circumstances require until such time as delivery to the proper authorities is possible. A report of the matter shall be made to an appropriate superior of the passenger.

§ 700.844Marriages on board.

The commanding officer shall not perform a marriage ceremony on board his or her ship or aircraft. He or she shall not permit a marriage ceremony to be performed on board when the ship or aircraft is outside the territory of the United States, except:

(a) In accordance with local laws and the laws of the state, territory, or district in which the parties are domiciled, and

(b) In the presence of a diplomatic or consular official of the United States, who has consented to issue the certificates and make the returns required by the consular regulations.

§ 700.845Maintenance of logs.

(a) A deck log and an engineering log shall be maintained by each ship in commission, and by such other ships and craft as may be designated by the Chief of Naval Operations.

(b) A compass record shall be maintained as an adjunct to the deck log. An engineer's bell book shall be maintained as an adjunct to the engineering log.

(c) The Chief of Naval Operations shall prescribe regulations governing the contents and preparation of the deck and engineering logs and adjunct records.

(d) In the case of a ship or craft equipped with automated data logging equipment, the records generated by such equipment satisfy the requirements of this section.

§ 700.846Status of logs.

The deck log, the engineering log, the compass record, the bearing hooks, the engineer's bell book, and any records generated by automated data logging equipment shall each constitute an official record of the command.

§ 700.847Responsibility of a master of an in-service ship of the Military Sealift Command.

(a) In an in-service ship of the Military Sealift Command, the master's responsibility is absolute, except when, and to the extent, relieved therefrom by competent authority. The authority of the master is commensurate with the master's responsibility. The master is responsible for the safety of the ship and all persons on board. He or she is responsible for the safe navigation and technical operation of the ship and has paramount authority over all persons on board. He or she is responsible for the preparation of the abandon ship bill and has exclusive authority to order the ship abandoned. The master may, using discretion, and when not contrary to law or regulation, delegate authority for operation of shipboard functions to competent subordinates. However, such delegation of authority shall in no way relieve the master of continued responsibility for the safety, well-being, and efficiency of the ship.

(b) All orders and instructions of the master shall be in accordance with appropriate laws of the United States, and all applicable orders and regulations of the Navy, Military Sealift Command, and the Office of Personnel Management. A master who departs from the orders or instructions of competent authority or takes official action contrary to such orders or instructions, shall report immediately the circumstances to the authority from whom the prior orders or instructions were received.

§ 700.848Relations with merchant seamen.

When in foreign waters, the commanding officer, with the approval of the senior officer present, may receive on board as supernumeraries for rations and passage:

(a) Distressed seamen of the United States for passage to the United States, provided they bind themselves to be amenable in all respects to Navy Regulations.

(b) As prisoners, seamen from merchant vessels of the United States, provided that the witnesses necessary to substantiate the charges against them are received, or adequate means adopted to ensure the presence of such witnesses on arrival of the prisoners at the place where they are to be delivered to the civil authorities.

§ 700.855Status of boats.

(a) Boats shall be regarded in all matters concerning the rights, privileges and comity of nations as part of the ship or aircraft to which they belong.

(b) In ports where war, insurrection or armed conflict exists or threatens, the commanding officer shall:

(1) Require that boats away from the ship or aircraft have some appropriate and competent person in charge; and

(2) See that steps are taken to make their nationality evident at all times.

§ 700.856Pilotage.

(a) The commanding officer shall:

(1) Pilot the ship under all ordinary circumstances, but he may employ pilots whenever, in his or her judgment such employment is prudent;

(2) Not call a pilot on board until the ship is ready to proceed;

(3) Not retain a pilot on board after the ship has reached her destination or a point where the pilot is no longer required;

(4) Give preference to licensed pilots; and

(5) Pay pilots no more than the local rates.

(b) A pilot is merely an adviser to the commanding officer. The presence on board of a pilot shall not relieve the commanding officer or any subordinate from his or her responsibility for the proper performance of the duties with which he or she may be charged concerning the navigation and handling of the ship. For an exception to the provisions of this paragraph, see “Rules and Regulations Covering Navigation of the Panama Canal and Adjacent Waters,” (35 CFR Chapter I, subchapter C) which directs that the pilot assigned to a vessel in those waters shall have control of the navigation and movement of the vessel. Also see the provisions of these regulations concerning the navigation of ships at a naval shipyard or station, or in entering or leaving drydock.

(a) The commanding officer is responsible for the safe navigation of his or her ship or aircraft, except as prescribed otherwise in these regulations for ships at a naval shipyard or station, in drydock, or in the Panama Canal. During an armed conflict, an exercise simulating armed conflict, or an authorized law enforcement activity, competent authority may modify the use of lights or other safeguards against collision. Except in time of actual armed conflict, such modifications will be authorized only when ships or aircraft clearly will not be hazarded.

(c) Professional standards and regulations governing the operation of naval aircraft and related matters shall be promulgated by the Chief of Naval Operations or the Commandant of the Marine Corps, as appropriate.

(d) The Commanding Officer is responsible for ensuring that weather and oceanic effects are considered in the effective and safe operation of his or her ship or aircraft.

§ 700.859Quarantine.

(a) The commanding officer or aircraft commander of a ship or aircraft shall comply with all quarantine regulations and restrictions, United States or foreign, for the port or area within which the ship or aircraft is located.

(b) The commanding officer shall give all information required by authorized foreign officials, insofar as permitted by military security, and will meet the quarantine requirements promulgated by proper authority for United States or foreign ports. However, nothing in this section shall be interpreted as authorizing commanding officers to permit on board inspections by foreign officials, or to modify in any manner the provisions of § 700.828 of these regulations.

(c) The commanding officer shall allow no intercourse with a port or area or with other ships or aircraft until after consultation with local health authorities when:

(1) Doubt exists as to the sanitary regulations or health conditions of the port or area;

(2) A quarantine condition exists aboard the ship or aircraft;

(3) Coming from a suspected port or area, or one actually under quarantine.

(d) No concealment shall be made of any circumstance that may subject a ship or aircraft of the Navy to quarantine.

(e) Should there appear at any time on board a ship or aircraft conditions which present a hazard of introduction of a communicable disease outside the ship or aircraft, the commanding officer or aircraft commander shall at once report the fact to the senior officer present, to other appropriate higher authorities and, if in port, to the health authorities having quarantine jurisdiction. The commanding officer or aircraft commander shall prevent all contracts likely to spread disease until pratique is received. The commanding officer of a ship in port shall hoist the appropriate signal.

§ 700.860Customs and immigration inspections.

(a) The commanding officer or aircraft commander shall facilitate any proper examination which it may be the duty of a customs officer or immigration officer of the United States to make on board the ship or aircraft. The commanding officer or air craft commander shall not permit a foreign customs officer or an immigration officer to make any examination whatsoever, except as hereinafter provided, on board the ship, aircraft or boats under his or her command.

(b) When a ship or aircraft of the Navy or a public vessel manned by naval personnel and operating under the direction of the Department of the Navy is carrying cargo for private commercial account, such cargo shall be subject to the local customs regulations of the port, domestic or foreign, in which the ship or aircraft may be, and in all matters relating to such cargo, the procedure prescribed for private merchant vessels and aircraft shall be followed. Government-owned stores or cargo in such ship or aircraft not landed nor intended to be landed nor in any manner trafficked in, are, by the established precedent of international courtesy, exempt from customs duties, but a declaration of such stores or cargo, when required by local customs regulations, shall be made. Commanding officers shall prevent, as far as possible, disputes with the local authorities in such cases, but shall protect the ship or aircraft and the Government-owned stores and cargo from any search or seizure.

(c) Upon arrival from a foreign country, at the first port of entry in United States territory, the commanding officer, or the senior officer of ships or aircraft in company, shall notify the collector of the port. Each individual aboard shall, in accordance with customs regulations, submit a list of articles purchased or otherwise acquired by him abroad. Dutiable articles shall not be landed until the customs officer has completed his inspection.

(d) Commanding officers of naval vessels and aircraft transporting United States civilian and foreign military and civilian passengers shall satisfy themselves that the passenger clearance requirements of the Immigration and Naturalization Service are complied with upon arrival at points within the jurisdiction of the United States. Clearance for such passengers by an immigration officer is necessary upon arrival from foreign ports and at the completion of movements between any of the following: Continental United States (including Alaska and Hawaii), the Canal Zone, Puerto Rico, Virgin Islands, Guam, American Samoa, or other outlying places subject to United States jurisdiction. Commanding officers, prior to arriving, shall advise the cognizant naval or civilian port authority of the aforementioned passengers aboard and shall detain them for clearance as required by the Immigration and Naturalization Service.

(e) The provisions of this section shall not be construed to require delaying the movements of any ship or aircraft of the Navy in the performance of her assigned duty.

Special Circumstances/Ships in Naval Stations and Shipyards§ 700.871Responsibility for safety of ships and craft at a naval station or shipyard.

(a) The commanding officer of a naval station or shipyard shall be responsible for the care and safety of all ships and craft at such station or shipyard not under a commanding officer or assigned to another authority, and for any damage that may be done by or to them. In addition, the commanding officer of a naval station or shipyard shall be responsible for the safe execution of work performed by that activity upon any ship located at the activity.

(b) It shall be the responsibility of the commanding officer of a ship in commission which is undergoing overhaul, or which is otherwise immobilized at a naval station or shipyard, to request such services as are necessary to ensure the safety of the ship. The commanding officer of the naval station or shipyard shall be responsible for providing requested services in a timely and adequate manner.

(c) When a ship or craft not under her own power is being moved by direction of the commanding officer of a naval station or shipyard, that officer shall be responsible for any damage that may result therefrom. The pilot or other person designated for the purpose shall be in direct charge of such movement, and all persons on board shall cooperate with and assist the pilot as necessary. Responsibility for such actions in a private shipyard will be assigned by contract to the contractor.

(d) When a ship operating under her own power is being drydocked, the commanding officer shall be fully responsible for the safety of his ship until the extremity of the ship first to enter the drydock reaches the dock sill and the ship is pointed fair for entering the drydock. The docking officer shall then take charge and complete the docking, remaining in charge until the ship has been properly landed, bilge blocks hauled, and the dock pumped down. In undocking, the docking officer shall assume charge when flooding the dock preparatory to undocking is started, and shall remain in charge until the extremity of the ship last to leave the dock clears the sill, and the ship is pointed fair for leaving the drydock, when the ship's commanding officer shall assume responsibility for the safety and control of the ship.

(e) When a naval ship is to be drydocked in a private shipyard under a contract being administered by a supervisor of shipbuilding, the responsibilities of the commanding officer are the same as in the case of drydocking in a naval shipyard. The responsibilities for the safety of the actual drydocking, normally assigned to the commanding officer of a naval shipyard through the docking officer, will be assigned by contract to the contractor. The supervisor of shipbuilding is responsible, however, for ensuring that the contractor facilities, methods, operations, and qualifications meet the standards of efficiency and safety prescribed by Navy directives.

(f) If the ship is elsewhere than at a naval station or shipyard, the relationship between the commanding officer and the supervisor of shipbuilding, or other appropriate official, shall be the same as that between the commanding officer and the commanding officer of a naval station or naval shipyard as specified in this article.

§ 700.872Ships and craft in drydock.

(a) The commanding officer of a ship in drydock shall be responsible for effecting adequate closure, during such periods as they will be unattended, of all openings in the ship's bottom upon which no work is being undertaken by the docking activity. The commanding officer of the docking activity shall be responsible for the closing, at the end of working hours, of all valves and other openings in the ship's bottom upon which work is being undertaken by the docking activity, when such closing is practicable.

(b) Prior to undocking, the commanding officer of a ship shall report to the docking officer any material changes in the amount and location of weights on board which have been made by the ship's force while in dock, and shall ensure, and so report, that all sea valves and other openings in the ship's bottom are properly closed. The level of water in the dock shall not be permitted to rise above the keel blocks prior to receipt of this report. The above valves and openings shall be tended during flooding of the dock.

(c) When a ship or craft, not in commission, is in a naval drydock, the provisions of this article shall apply, except that the commanding officer of the docking activity or his representative shall act in the capacity of the commanding officer of the ship or craft.

(d) When a naval ship or craft is in drydock in a private shipyard, responsibility for actions normally assigned by the commanding officer of the docking activity will be assigned by contract to the contractor.

§ 700.873Inspection incident to commissioning of ships.

When a ship is to be commissioned, the authority designated to place such ship in commission shall, just prior to commissioning, cause an inspection to be made to determine the cleanliness and readiness of the ship to receive its crew and outfit. In the case of the delivery of a ship by a contractor, the above inspection shall precede acceptance of the ship. A copy of the report of this inspection shall be furnished the officer detailed to command the ship and to appropriate commands.

Special Circumstances/Prospective Commanding Officers§ 700.880Duties of the prospective commanding officer of a ship.

(a) Except as may be prescribed by the Chief of Naval Operations, the prospective commanding officer of a ship not yet commissioned shall have no independent authority over the preparation of the ship for service by virtue of his assignment to such duty, until the ship is commissioned and placed under his or her command. The prospective commanding officer shall:

(1) Procure from the commander of the naval shipyard or the supervisor of shipbuilding the general arrangement plans of the ship, and all pertinent information relative to the general condition of the ship and the work being undertaken on the hull, machinery and equipment, upon reporting for duty;

(2) Inspect the ship as soon after reporting for duty as practicable, and frequently thereafter, in order to keep him or herself informed of the state of her preparation for service. If, during the course of these inspections he or she notes an unsafe or potentially unsafe condition, he or she shall report such fact to the commander of the naval shipyard or the supervisor of shipbuilding and to his or her superior for resolution;

(3) Keep him or herself informed as to the progress of the work being done, including tests of equipment, and make such recommendations to the commander of the naval shipyard or the supervisor of shipbuilding as he or her she deems appropriate;

(4) Ensure that requisitions are submitted for articles to outfit the ship which are not otherwise being provided;

(5) Prepare the organization of the ship;

(6) Train the nucleus crew to effectively and efficiently take charge of and operate the ship upon commissioning; and

(7) Make such reports as may be required by higher authority, and include therein a statement of any deficiency in material or personnel.

(b) If the prospective commanding officer does not consider the ship in proper condition to be commissioned at the time the commander of the naval shipyard or the supervisor of shipbuilding signifies his intention of transferring the ship to the prospective commanding officer, he or she shall report that conclusion with his reasons therefor, in writing, to the commander of the naval shipyard or the supervisor of shipbuilding and to the appropriate higher authority.

(c) If the ship is elsewhere than at a naval shipyard, the relationship between the prospective commanding officer and the supervisor of shipbuilding, or other appropriate official, shall be the same as that between the prospective commanding officer and the commander of a naval shipyard as specified in this article.

(d) The Chief of Naval Operations shall be responsible for providing the commanding officer or prospective commanding officer of a naval nuclear powered ship with the authority and direction necessary to carry out his or her responsibilities.

Unless some other officer has been so designated by competent authority, the “senior officer present” is the senior line officer of the Navy on active duty, eligible for command at sea, who is present and in command of any part of the Department of the Navy in the locality or within an area prescribed by competent authority, except where personnel of both the Navy and the Marine Corps are present on shore and the officer of the Marine Corps who is in command is senior to the senior line officer of the Navy. In such cases, the officer of the Marine Corps shall be the senior officer present on shore.

§ 700.902Eligibility for command at sea.

All officers of the line of the Navy, including Naval Reserve, on active duty, except those designated for the performance of engineering, aeronautical engineering or special duties, and except those limited duty officers who are not authorized to perform all deck duties afloat, are eligible for command at sea.

§ 700.903Authority and responsibility.

At all times and places not excluded in these regulations, or in orders from competent authority, the senior officer present shall assume command and direct the movements and efforts of all persons in the Department of the Navy present, when, in his or her judgment, the exercise of authority for the purpose of cooperation or otherwise is necessary. The senior officer present shall exercise this authority in a manner consistent with the operational command responsibility vested in the commanders of unified or specified commands.

§ 700.904Authority of senior officer of the Marine Corps present.

The authority and responsibility of the senior officer present are also conferred upon the senior commanding officer of the Marine Corps present with respect to those units of the Marine Corps, including Navy personnel attached, which are in the locality and not under the authority of the senior officer present.

§ 700.922Shore patrol.

(a) When liberty is granted to any considerable number of persons, except in an area that can absorb them without danger of disturbance or disorder, the senior officer present shall cause to be established, temporarily or permanently, in charge of an officer, a sufficient patrol of officers, petty officers, and noncommissioned officers to maintain order and suppress any unseemly conduct on the part of any person on liberty. The senior patrol officer shall communicate with the chief of police or other local officials and make such arrangements as may be practicable to aid the patrol in carrying out its duties properly. Such duties may include providing assistance to military personnel in relations with civil courts and police, arranging for release of service personnel from civil authorities to the parent command, and providing other services that favorably influence discipline and morale.

(b) A patrol shall not be landed in any foreign port without first obtaining the consent of the proper local officials. Tact must be used in requesting permission; and, unless it is given willingly and cordially, the patrol shall not be landed. If consent cannot be obtained, the size of liberty parties shall be held to such limits as may be necessary to render disturbances unlikely.

(c) Officers and enlisted personnel on patrol duty in a foreign country normally should not be armed. In the United States, officers and men may be armed as prescribed by the senior officer present.

(d) No officer or enlisted person who is a member of the shore patrol or beach guard, or is assigned in support thereof, shall partake of or indulge in any form of intoxicating beverage or other form of intoxicant while on duty, on post, or at other times prescribed by the senior patrol officer. The senior patrol officer shall ensure that the provisions of this paragraph are strictly observed and shall report promptly in writing to the senior officer present all violations of these provisions that may come to his or her notice. All officers and enlisted personnel of the patrol shall report to the senior patrol officer all violations of the provisions of this paragraph on the part of those under them.

§ 700.923Precautions for health.

The senior officer present shall take precautions to preserve the health of the persons under his or her authority. He or she shall obtain information regarding the healthfulness of the area and medical facilities available therein and shall adopt such measures as are required by the situation.

§ 700.924Medical or dental aid to persons not in the naval service.

The senior officer present may require the officers of the Medical Corps and Dental Corps under his or her authority to render emergency professional aid to persons not in the naval service when such aid is necessary and demanded by the laws of humanity or the principles of international courtesy.

§ 700.934Exercise of power of consul.

When upon the high seas or in any foreign port where there is no resident consul of the United States, the senior officer present afloat has the authority to exercise all powers of a consul in relation to mariners of the United States.

§ 700.939Granting of asylum and temporary refuge.

(a) If an official of the Department of the Navy is requested to provide asylum or temporary refuge, the following procedures shall apply:

(1) On the high seas or in territories under exclusive United States jurisdiction (including territorial seas, the Commonwealth of Puerto Rico, territories under United States administration, and possessions):

(i) At his or her request, an applicant for asylum will be received on board any naval aircraft or waterborne craft, Navy or Marine Corps activity or station.

(ii) Under no circumstances shall the person seeking asylum be surrendered to foreign jurisdiction or control, unless at the personal direction of the Secretary of the Navy or higher authority. Persons seeking political asylum should be afforded every reasonable care and protection permitted by the circumstances.

(i) Temporary refuge shall be granted for humanitarian reasons on board a naval aircraft or waterborne craft, Navy or Marine Corps activity or station, only in extreme or exceptional circumstances wherein life or safety of a person is put in imminent danger, such as pursuit by a mob. When temporary refuge is granted, such protection shall be terminated only when directed by the Secretary of the Navy or higher authority.

(ii) A request by foreign authorities for return of custody of a person under the protection of temporary refuge will be reported to the CNO or Commandant of the Marine Corps. The requesting foreign authorities will be informed that the case has been referred to higher authorities for instructions.

(iii) Persons whose temporary refuge is terminated will be released to the protection of the authorities designated in the message authorizing release.

(iv) While temporary refuge can be granted in the circumstances set forth above, permanent asylum will not be granted.

(v) Foreign nationals who request assistance in forwarding requests for political asylum in the United States will not be received on board, but will be advised to apply in person at the nearest American Embassy or Consulate. If a foreign national is already on board, however, such person will not be surrendered to foreign jurisdiction or control unless at the personal direction of the Secretary of the Navy.

(3) The Chief of Naval Operations or Commandant of the Marine Corps, as appropriate, will be informed by the most expeditious means of all action taken pursuant to paragraphs (a)(1)(i) and (a)(1)(ii) of this section, as well as the attendant circumstances. Telephone or voice communications will be used where possible, but must be confirmed as soon as possible with an immediate precedence message, information to the Secretary of State (for actions taken pursuant to paragraphs (a)(2)(i) and (a)(2)(v) of this section, also make the appropriate American Embassy or Consular Office an information addressee). If communication by telephone or voice is not possible, notification will be effected by an immediate precedence message, as described above. The Chief of Naval Operations or Commandant of the Marine Corps will cause the Secretary of the Navy and the Deputy Director for Operations of the National Military Command Center to be notified without delay.

(a) All persons in the naval service on active service, and those on the retired list with pay, and transferred members of the Fleet Reserve and the Fleet Marine Corps Reserve, are at all times subject to naval authority. While on active service they may, if not on leave of absence except as noted below, on the sick list, taken into custody, under arrest, suspended from duty, in confinement or otherwise incapable of discharging their duties, exercise authority over all persons who are subordinated to them.

(b) A person in the naval service, although on leave, may exercise authority:

(1) When in a naval ship or aircraft and placed on duty by the commanding officer or aircraft commander.

(2) When in a ship or aircraft of the armed services of the United States, other than a naval ship or aircraft, as the commanding officer of naval personnel embarked, or when placed on duty by such officer.

(3) When senior officer at the scene of a riot or other emergency, or when placed on duty by such officer.

§ 700.1026Authority of an officer who succeeds to command.

(a) An officer who succeeds to command due to incapacity, death, departure on leave, detachment without relief or absence due to orders from competent authority of the officer detailed to command, has the same authority and responsibility as the officer whom he or she succeeds.

(b) An officer who succeeds to command during the temporary absence of the commanding officer shall make no changes in the existing organization, and shall endeavor to have the routine and other affairs of the command carried on in the usual manner.

(c) When an officer temporarily succeeding to command signs official correspondence, the word “Acting” shall appear below his or her signature.

§ 700.1038Authority of a sentry.

A sentry, within the limits stated in his or her orders, has authority over all persons on his or her post.

Detail to Duty§ 700.1052Orders to active service.

(a) No person who is on leave of absence or not on active service shall be ordered into active service or on duty without permission of the Commandant of the Marine Corps, or the Chief of Naval Personnel, as appropriate, except:

(1) In the case of a person on leave of absence, by the officer who granted the leave or a superior, or

(2) By the senior officer present on a foreign station.

(b) In the event that the senior officer present of a foreign station issues any orders as contemplated by this article, he or she shall report the facts, including the reasons for issuing such orders, to the Commandant of the Marine Corps or the Chief of Naval Personnel, without delay.

(c) Retired officers of the Navy and Marine Corps may be ordered to active service, with their consent, in time of peace. In time of war or a national emergency, such retired officers may, at the discretion of the Secretary of the Navy, be ordered to active service.

§ 700.1053Commander of a task force.

(a) A geographic fleet commander, and any other naval commander, may detail in command of a task force, or other task command, any eligible officer within his or her command whom he or she desires. All other officers ordered to the task force or the task command shall be considered subordinate to the designated commander.

(b) All orders issued under the authority of this article shall continue in effect after the death or disability of the officer issuing them until they are revoked by his or her successor in command or higher authority.

(c) The powers delegated to a commander by this article are not conferred on any other officer by virtue of the fact that he or she is the senior officer present.

The officer detailed to command a naval base shall be an officer of the line in the Navy, eligible for command at sea.

§ 700.1055Command of a naval shipyard.

The officer detailed to command a naval shipyard shall be trained in the technical aspects of building and repair of ships and shall have had substantial previous experience in the technical and management phases of such work. Such officer may have been designated for engineering duty.

§ 700.1056Command of a ship.

(a) The officer detailed to command a commissioned ship shall be an officer of the line in the Navy eligible for command at sea.

(b) The officer detailed to command an aircraft carrier, an aircraft tender, or a ship with a primary task of operating or supporting aircraft shall be an officer of the line in the navy, eligible for command at sea, designated as a naval aviator or naval flight officer.

§ 700.1057Command of an air activity.

(a) The officer detailed to command a naval aviation school, a naval air station, or a naval air unit organized for flight tactical purposes shall be an officer of the line in the navy, designated as a naval aviator or naval flight officer, eligible for command at sea.

(b) For the purposes of Title 10 U.S.C. § 5942, a naval air training squadron is not considered to be a naval aviation school or a naval air unit organized for flight tactical purposes. The officer detailed to command a naval air training squadron or an air unit organized for administrative purposes shall be a line officer of the naval service, designated as a naval aviator or naval flight officer, eligible for command. If a naval air training squadron has been designated a multi-service training squadron, the officer detailed to command that squadron may be a line officer from any armed service designated as the equivalent of a naval aviator naval flight officer and otherwise eligible to command an aviation squadron or unit under that officer's pertinent service regulations.

(c) The officer detailed to command a naval air activity of a technical nature on shore may be an officer of the line in the navy not eligible for command at sea, but designated as a naval aviator or a naval flight officer or designated for aeronautical engineering duty.

(d) The officer detailed to command a Marine Corps air unit organized for flight tactical purpose shall be an officer of the Marine Corps, designated as a naval aviator or naval flight officer.

(e) Other than an air training squadron, an officer of the Navy shall not normally be detailed to command an aviation unit of the Marine Corps nor shall an officer of the Marine Corps normally be detailed to command an aviation unit of the Navy. Aircraft units of the Marine Corps may, however, be assigned to ships or to naval air activities in the same manner as aircraft units of the navy and, conversely, aircraft units of the navy may be so assigned to Marine Corps air activities. A group composed of aircraft units of the Navy and aircraft units of the Marine Corps may be commanded either by an officer of the Navy or an officer of the Marine Corps.

§ 700.1058Command of a submarine.

The officer detailed to command a submarine shall be an officer of the line in the Navy, eligible for command at sea and qualified for command of submarines.

§ 700.1059Command of a staff corps activity.

Officers in a staff corps shall be detailed to command only such activities as are appropriate to their corps.

Except as otherwise provided in the Uniform Code of Military Justice, no person in the naval service may demand a court martial either on him or herself or on any other person in the naval service.

§ 700.1113Endorsement of commercial product or process.

Except as necessary during contract administration to determine specification or other compliance, no person in the Department of the Navy, in his or her official capacity, shall endorse or express an opinion of approval or disapproval of any commercial product or process.

(a) Except as specifically provided in this section, maintenance of personal records of individuals, and the release of those records, shall be in accordance with the provisions of the Privacy Act and directives issued by the Secretary of the Navy.

(b) Except as specifically provided in this section, the release of departmental records to private parties shall be in accordance with the provisions of the Freedom of Information Act and directives issued by the Secretary of the Navy.

Official Records§ 700.1121Disclosure, publication and security of official information.

(a) No person in the Department of the Navy shall convey or disclose by oral or written communications, publication, graphic (including photographic) or other means, any classified information except as provided in directives governing the release of such information. Additionally, no person in the Department of the Navy shall communicate or otherwise deal with foreign entities, even on an unclassified basis, when this would commit the Department of the Navy to disclose classified military information except as may be required in that person's official duties and only after coordination with and approval by a release authority designated by competent authority.

(b) No person in the Department of the Navy shall convey or disclose by oral or written communication, publication or other means except as may be required by his or her official duties, any information concerning the Department of Defense or forces, or any person, thing, plan or measure pertaining thereto, where such information might be of possible assistance to a foreign power; nor shall any person in the Department of the Navy make any public speech or permit publication of an article written by or for that person which is prejudicial to the interests of the United States. The regulations concerned with the release of information to the public through any media will be as prescribed by the Secretary of the Navy.

(c) No person in the Department of the Navy shall disclose any information whatever, whether classified or unclassified, or whether obtained from official records or within the knowledge of the relator, which might aid or be of assistance in the prosecution or support of any claim against the United States. The prohibitions prescribed by the first sentence of this paragraph are not applicable to an officer or employee of the United States who is acting in the proper course of, and within the scope of, his or her official duties, provided that the disclosure of such information is otherwise authorized by stature, Executive Order of the President or departmental regulation.

(d) Any person in the Department of the Navy receiving a request from the public for Department of the Navy records shall be governed by the provisions of the Freedom of Information Act and implementing directives issued by the Secretary of the Navy.

(e) Persons in the Department of the Navy desiring to submit manuscripts to commercial publishers on professional, political or international subjects shall comply with regulations promulgated by the Secretary of the Navy.

(f) No persons in the naval service on active duty or civilian employee of the Department of the Navy shall act as correspondent of a news service or periodical, or as a television or radio news commentator or analyst, unless assigned to such duty in connection with the public affairs activities of the Department of the Navy, or authorized by the Secretary of the Navy. Except as authorized by the Secretary of the Navy, no person assigned to duty in connection with public affairs activities of the Department of the Navy shall receive any compensation for acting as such correspondent, commentator or analyst.

§ 700.1126Correction of naval records.

(a) Any military record in the Department of the Navy may be corrected by the Secretary of the Navy, acting through the Board for Correction of Naval Records, when the Secretary considers that such action should be taken in order to correct an error or to remove an injustice.

(b) Applications for corrections under this article may be made only after exhaustion of all other administrative remedies afforded by law or regulation.

(c) Applications for such corrections should be submitted to the Secretary of the Navy (Board for Correction of Naval Records) in accordance with procedural regulations established by the Secretary of the Navy and approved by the Secretary of Defense.

§ 700.1127Control of official records.

(a) No person, without proper authority, shall withdraw official records or correspondence from the files, or destroy them, or withhold them from those persons authorized to have access to them.

(b) Except as specifically provided in this section, maintenance of personal records of individuals, and the release of those records, shall be in accordance with the provisions of the Privacy Act and directives issued by the Secretary of the Navy.

(c) Except as specifically provided in this section, the release of departmental records to private parties shall be in accordance with the provisions of the Freedom of Information Act and directives issued by the Secretary of the Navy.

§ 700.1128Official records in civil courts.

(a) Department of the Navy personnel shall not provide official information, testimony, or documents, submit to interview, or permit a view or visit, for litigation purposes, without special written authorization.

(b) Department of the Navy personnel shall not provide, with or without compensation, opinion or expert testimony concerning official Department of Defense information, subjects, personnel or activities, except on behalf of the United States or a party represented by the Department of Justice, or with special written authorization.

(a) All personnel shall endeavor to prevent and eliminate the unauthorized use of marijuana, narcotics and other controlled substances within the naval service.

(b) The wrongful possession, use, introduction, manufacture, distribution and possession, or introduction with intent to distribute, of a controlled substance by persons in the naval service are offenses under Article 112a, Uniform Code of Military Justice. Except for authorized medicinal or other authorized purposes, the possession, use, introduction, sale, or other transfer of marijuana, narcotics or other controlled substances on board any ship or aircraft of the Department of the Navy or within any naval base, station or other place under the jurisdiction of the Department of the Navy by all persons is prohibited.

(c) The term “controlled substance” means: a drug or other substance included in Schedule I, II, III, IV, or V established by section 202 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (84 Stat. 1236), as updated and republished under the provisions of that Act (21 U.S.C. 812).

§ 700.1139Rules for preventing collisions, afloat and in the air.

(a) All persons in the naval service responsible for the operation of naval ships, craft and aircraft shall diligently observe the International Rules for Preventing Collisions at Sea (commonly called the COLREGS) (33 CFR chapter I), Inland Navigation Rules (33 CFR chapter I), domestic and international air traffic regulations (14 CFR chapter I), and such other rules and regulations as may be established by the Secretary of Transportation or other competent authority for regulating traffic and preventing collisions on the high seas, in inland waters or in the air, where such laws, rules and regulations are applicable to naval ships and aircraft. In those situations where such law, rule or regulation is not applicable to naval ships, craft or aircraft, they shall be operated with due regard for the safety of others.

(b) Any significant infraction of the laws, rules and regulations governing traffic or designed to prevent collisions on the high seas, in inland waters, or in the air which may be observed by persons in the naval service shall be promptly reported to their superiors, including the Chief of Naval Operations or Commandant of the Marine Corps when appropriate.

(c) Reports need not be made under this article if the facts are otherwise reported in accordance with other directives, including duly authorized safety programs.

Rights and Restrictions§ 700.1162Alcoholic beverages.

(a) Except as may be authorized by the Secretary of the Navy, the introduction, possession or use of alcoholic beverages on board any ship, craft, aircraft, or in any vehicle of the Department of the Navy is prohibited. The transportation of alcoholic beverages for personal use ashore is authorized, subject to the discretion of the officer in command or officer in charge, or higher authority, when the beverages are delivered to the custody of the officer in command or officer in charge of the ship, craft, or aircraft in sealed packages, securely packed, properly marked and in compliance with customs laws and regulations, and stored in securely locked compartments, and the transportation can be performed without undue interference with the work or duties of the ship, craft, or aircraft. Whenever an alcoholic beverage is brought on board any ship, craft, or aircraft for transportation for personal use ashore, the person who brings it on board shall at that time file with the officer in command or officer in charge of the ship, craft or aircraft, a statement of the quantity and kind of alcoholic beverage brought on board, together with a certification that its importation will be in compliance with customs and internal revenue laws and regulations and applicable State or local laws at the place of debarkation.

(b) The introduction, possession and use of alcoholic beverages for personal consumption or sale is authorized within naval activities and other places ashore under naval jurisdiction to the extent and in such manner as the Secretary of the Navy may prescribe.

§ 700.1165Fraternization prohibited.

(a) Personal relationships between officer and enlisted members which are unduly familiar and which do not respect differences in rank are inappropriate and violate long-standing traditions of the naval service.

(b) When prejudicial to good order and discipline or of a nature to bring discredit on the naval service, personal relationships are prohibited:

(1) Between an officer and an enlisted member which are unduly familiar and do not respect differences in rank and grade;

(2) Between officer members which are unduly familiar and do not respect differences in rank and grade where a direct senior-subordinate supervisory relationship exists; and

(3) Between enlisted members which are unduly familiar and do not respect differences in rank and grade where a direct senior-subordinate supervisory relationship exists.

(c) Violation of this article may result in administrative or punitive action. This article applies in its entirety to all regular and reserve personnel.

§ 700.1166Sexual harassment.

(a) Sexual harassment will not be condoned or tolerated in the Department of the Navy. It is a form of arbitrary discrimination which is unprofessional, unmilitary, and which adversely affects morale and discipline and ultimately the mission effectiveness of the command involved.

(b) Personnel who use implicit or explicit sexual behavior to control, influence or affect the career, promotion opportunities, duty assignments or pay of any other person are engaging in sexual harassment. Naval personnel who make deliberate or repeated offensive verbal comments, gestures or physical contact of a sexual nature in the work environment are also engaging in sexual harassment.

§ 700.1167Supremacist activity.

No person in the naval service shall participate in any organization that espouses supremacist causes; attempts to create illegal discrimination based on race, creed, color, sex, religion, or national origin; advocates the use of force or violence against the Government of the United States or the Government of any state, territory, district, or possession thereof, or the Government of any subdivision therein; or otherwise engages in efforts to deprive individuals of their civil rights. The term “participate”, as used in this article, includes acts or conduct, performed alone or in concert with another, such as demonstrating, rallying, fundraising, recruiting, training, or organizing or leading such organizations. The term “participate” also includes engaging in any other activities in relation to such organizations or in furtherance of the objectives of such organizations when such activities are detrimental to good order, discipline, or mission accomplishment.

Pt. 701PART 701—AVAILABILITY OF DEPARTMENT OF THE NAVY RECORDS AND PUBLICATION OF DEPARTMENT OF THE NAVY DOCUMENTS AFFECTING THE PUBLICSubpart A—Department of the Navy Freedom of Information Act (FOIA) ProgramSec.701.1Purpose.701.2Navy FOIA website/FOIA handbook.701.3Applicability.701.4Responsibility and authority.701.5Policy.701.6Reading rooms.701.7Relationship between the FOIA and PA.701.8Processing FOIA requests.701.9Referrals.701.10Processing requests received from governmental officials.701.11Processing specific kinds of records.701.12FOIA appeals/litigation.Subpart B—FOIA Definitions and Terms701.135 U.S.C. 552(a)(1) materials.701.145 U.S.C. 552(a)(2) materials.701.155 U.S.C. 552(a)(3) materials.701.16Administrative appeal.701.17Affirmative information disclosure.701.18Agency record.701.19Appellate authority.701.20Discretionary disclosure.701.21Electronic record.701.22Exclusions.701.23Executive Order 12958.701.24Federal agency.701.255 U.S.C. 552, Freedom of Information Act (FOIA).701.26FOIA exemptions.701.27FOIA fee terms location.701.28FOIA request.701.29Glomar response.701.30Initial Denial Authority (IDA).701.31Mosaic or compilation response.701.32Perfected request.701.33Public domain.701.34Public interest.701.35Reading room.701.36Release authorities.701.37Reverse FOIA.701.38Technical data.701.39Vaughn index.Subpart C—FOIA Fees701.40Background.701.41FOIA fee terms.701.42Categories of requesters—applicable fees.701.43Fee declarations.701.44Restrictions.701.45Fee assessment.701.46Aggregating requests.701.47FOIA fees must be addressed in response letters.701.48Fee waivers.701.49Payment of fees.701.50Effect of the Debt Collection Act of 1982.701.51Refunds.701.52Computation of fees.701.53FOIA fee schedule.701.54Collection of fees and fee rates for technical data.701.55Processing FOIA fee remittances.Subpart D—FOIA Exemptions701.56Background.701.57Ground rules.701.58In-depth analysis of FOIA exemptions.701.59A brief explanation of the meaning and scope of the nine FOIA exemptions.Subpart E—Indexing, Public Inspection, and Federal Register Publication of Department of the Navy Directives and Other Documents Affecting the Public701.61Purpose.701.62Scope and applicability.701.63Policy.701.64Publication of adopted regulatory documents for the guidance of the public.701.65Availability, public inspection, and indexing of other documents affecting the public.701.66Publication of proposed regulations for public comment.701.67Petitions for issuance, revision, or cancellation of regulations affecting the public.Subpart F—Department of the Navy Privacy Act Program701.100Purpose.701.101Applicability.701.102Definitions.701.103Policy.701.104Responsibility and authority.701.105Systems of records.701.106Safeguarding records in systems of records.701.107Criteria for creating, altering, amending and deleting Privacy Act systems of records.701.108Collecting information about individuals.701.109Access to records.701.110Amendment of records.701.111Privacy Act appeals.701.112Disclosure of records.701.113Exemptions.701.114Enforcement actions.701.115Computer matching program.Subpart G—Privacy Act Exemptions701.116Purpose.701.117Exemption for classified records.701.118Exemptions for specific Navy record systems.701.119Exemptions for specific Marine Corps record systems.Authority:

Subparts A, B, C, and D of this part issue policies and procedures for implementing the Freedom of Information Act (5 U.S.C. 552), and Department of Defense Directives 5400.7 and 5400.7-R series 1 ,Department of Defense Freedom of Information Act Program, (See 32 CFR part 286) and promote uniformity in the Department of the Navy Freedom of Information Act (FOIA) Program.

1 Copies may be obtained if needed from the Navy FOIA Website at http://www.ogc.secnav.hq.navy.mil/foia/index.html

§ 701.2Navy FOIA website/FOIA handbook.

(a) The Navy FOIA website (http://www.ogc.secnav.hq.navy. mil/foia/index.html) is an excellent resource for requesters and FOIA coordinators. It provides connectivity to the Navy's official website, to other FOIA and non/FOIA websites, and to the Navy's electronic reading rooms.

(b) FOIA requesters are encouraged to visit the Navy FOIA website prior to filing a request. It features a FOIA Handbook which provides: guidance on how and where to submit requests; what's releasable/what's not; addresses for frequently requested information; time limits and addresses for filing appeals, etc. FOIA requesters may also use the electronic FOIA request form on the website to seek access to records originated by the Secretary of the Navy (SECNAV) or the Chief of Naval Operations (CNO).

§ 701.3Applicability.

(a) Subparts A, B, C, and D of this part apply throughout the Department of the Navy (DON) and take precedence over other DON instructions, which may serve to supplement it [i.e., Public Affairs Regulations, Security Classification Regulations, Navy Regulations, Marine Corps Orders, etc.]. Further, issuance of supplementary instructions by DON activities, deemed essential to the accommodation of perceived requirements peculiar to those activities, may not conflict.

(b) The FOIA applies to “records” maintained by “agencies” within the Executive Branch of the Federal government, including the Executive Office of the President and independent regulatory agencies. It states that “any person” (U.S. citizen; foreigner, whether living inside or outside the United States; partnerships; corporations; associations; and foreign and domestic governments) has the right enforceable by law, to access Federal agency records, except to the extent that such records (or portions thereof) are protected from disclosure by one or more of the nine FOIA exemptions or one of three special law enforcement exclusions.

(c) Neither Federal agencies nor fugitives from justice may use the FOIA to access agency records.

(d) The Department of Defense (DoD) FOIA directive states that the FOIA programs of the U.S. Atlantic Command and the U.S. Pacific Command fall under the jurisdiction of the Department of Defense and not the Department of the Navy. This policy represents an exception to the policies directed under DoD Directive 5100.3, “Support of the Headquarters of Unified, Specified, and Subordinate Commands.”

§ 701.4Responsibility and authority.

(a) The Head, DON PA/FOIA Policy Branch [CNO (N09B30)] has been delegated the responsibility for managing the DON's FOIA program, which includes setting FOIA policy and administering, supervising, and overseeing the execution of the 5 U.S.C. 552 and Department of Defense Directives 5400.7 and 5400.7-R series, Department of Defense Freedom of Information Act Program (see 32 CFR part 286).

(1) As principal DON FOIA policy official, CNO (N09B30) issues SECNAV Instruction 5720.42; oversees the administration of the DON FOIA program; issues and disseminates FOIA policy; oversees the Navy FOIA website; represents the DON at all meetings, symposiums, and conferences that address FOIA matters; writes the Navy's FOIA Handbook; serves on FOIA boards and committees; serves as principal policy advisor and oversight official on all FOIA matters; prepares the DON Annual FOIA Report for submission to the Attorney General; reviews all FOIA appeals to determine trends that impact on the DON; reviews all FOIA litigation matters involving the DON and apprises the Director, Freedom of Information and Security Review, DoD of same; responds to depositions and litigation regarding DON FOIA policy Secretary of the Navy Instruction 5820.8A, Release of Information for Litigation Purposes and Testimony by DON Personnel; reviews/analyzes all proposed FOIA legislation to determine its impact on the DON; develops a Navy-wide FOIA training program and serves as training oversight manager; conducts staff assistance visits/reviews within the DON to ensure compliance with 5 U.S.C. 552 and this part; reviews all SECNAV and Operations Navy instructions/forms that address FOIA; and oversees the processing of FOIA requests received by SECNAV and Chief of Naval Operations (CNO), to ensure responses are complete, timely, and accurate. Additionally, N09B30 works closely with other DoD and DON officials to ensure they are aware of highly visible and/or sensitive FOIA requests being processed by the DON.

(2) SECNAV has delegated Initial Denial Authority (IDA) to N09B30 for requests at the Secretariat and OPNAV level.

(b) The Commandant of the Marine Corps is delegated responsibility for administering and supervising the execution of this instruction within the Marine Corps. To accomplish this task, the Director of Administrative Resource Management (Code ARAD) serves as the FOIA Coordinator for Headquarters, U.S. Marine Corps, and assists CNO (N09B30) in promoting the Department of the Navy FOIA Program by issuing a Marine Corps FOIA Handbook; utilizing the Marine Corps FOIA website to disseminate FOIA information; consolidating its activities Annual FOIA Reports and submitting it to CNO (N09B30); maintaining a current list of Marine Corps FOIA coordinators, etc.

(c) The DON Chief Information Officer (DONCIO) is responsible for preparing and making publicly available upon request an index of all DON major information systems and a description of major information and record locator systems maintained by the Department of the Navy as required by 5 U.S.C. 552 and DoD 5400.7-R, “DoD Freedom of Information Act Program.”

(d) FOIA coordinators will:

(1) Implement and administer a local FOIA program under this instruction; serve as principal point of contact on FOIA matters; issue a command/activity instruction that implements SECNAVINST 5740.42F by reference and highlights only those areas unique to the command/activity (i.e., designate the command/activity's FOIA Coordinator and IDA; address internal FOIA processing procedures; and address command/activity level FOIA reporting requirements); receive and track FOIA requests to ensure responses are made in compliance with 5 U.S.C. 552 and DoD Directives 5400.7 and 5400.7-R and this part; provide general awareness training to command/activity personnel on the provisions of 5 U.S.C. 552 and this instruction; collect and compile FOIA statistics and submit a consolidated Annual FOIA Report to Echelon 2 FOIA coordinator for consolidation; provide guidance on how to process FOIA requests; and provide guidance on the scope of FOIA exemptions.

(2) Additionally, CMC (ARAD) and Echelon 2 FOIA coordinators will:

(i) Ensure that reading room materials are placed in the activity's electronic reading room and that the activity's website is linked to the Navy FOIA website and the activity's reading room is linked to the Navy's FOIA reading room lobby. Documents placed in the reading room shall also be indexed as a Government Information Locator Service (GILS) record, as this will serve as an index of available records.

(2) Within the Marine Corps: CMC and his Assistant, Chief of Staff, Deputy Chiefs of Staff; Director, Personnel Management Division; Fiscal Director of the Marine Corps; Counsel for the Commandant; Director of Intelligence; Director, Command, Communications and Computer Systems Division; Legislative Assistant to the Commandant; Director, Judge Advocate Division; Inspector General of the Marine Corps; Director, Manpower, Plans, and Policy Division; Head, Freedom of Information and Privacy Acts Section, HQMC; Director of Public Affairs; Director of Marine Corps History and Museums; Director, Personnel Procurement Division; Director, Morale Support Division; Director, Human Resources Division; Director of Headquarters Support; commanding generals; directors, Marine Corps districts; commanding officers, not in the administrative chain of command of a commanding general or district director. For each official listed above, the deputy or principal assistant is also authorized denial authority.

(3) JAG and his Deputy and the DON General Counsel (DONGC) and his deputies are excluded from this grant of authorization, since SECNAV has delegated them to serve as his appellate authorities. However, they are authorized to designate IDA responsibilities to other senior officers/ officials within JAG and DONGC. DONGC has delegated IDA responsibilities to the Assistant General Counsels and the Associate General Counsel (Litigation).

(4) For the shore establishment and operating forces: All officers authorized by Article 22, Uniform Code of Military Justice (UCMJ) or designated in section 0120, Manual of the Judge Advocate General (JAGINST 5800.7C) to convene general courts-martial.

(5) IDAs must balance their decision to centralize denials for the purpose of promoting uniform decisions against decentralizing denials to respond to requests within the FOIA time limits. Accordingly, the IDAs listed in paragraphs (e)(1) through (4) are authorized to delegate initial denial authority to subordinate activities for the purpose of streamlining FOIA processing. They may also delegate authority to a specific staff member, assistant, or individuals acting during their absence if this serves the purpose of streamlining and/or complying with the time limits of FOIA.

(6) Delegations of IDA authority should be reflected in the activity's supplementing FOIA instruction or by letter, with a copy to CNO (N09B30) or CMC (ARAD), as appropriate.

(f) Release authorities. Release authorities are authorized to grant requests on behalf of the Office of the Secretary of the Navy for agency records under their possession and control for which no FOIA exemption applies; to respond to requesters concerning refinement of their requests; to provide fee estimates; and to offer appeal rights for adequacy of search or fee estimates to the requester.

(g) Appellate authorities are addressed in § 701.12.

§ 701.5Policy.

(a) Compliance with the FOIA. DON policy is to comply with the FOIA as set forth in the Department of Defense's FOIA Directives 5400.7 and 5400.7-R, and this instruction in this part in both letter and spirit; conduct its activities in an open manner consistent with the need for security and adherence to other requirements of law and regulation; and provide the public with the maximum amount of accurate and timely information concerning its activities.

(b) Prompt action. DON activities shall act promptly on requests when a member of the public complies with the procedures established in the instruction in this part (i.e., files a “perfected request”) and the request is received by the official designated to respond. See § 701.11 for minimum requirements of the FOIA.

(c) Provide assistance. DON activities shall assist requesters in understanding and complying with the procedures established by the instruction in this part, ensuring that procedural matters do not unnecessarily impede a requester from obtaining DON records promptly.

(d) Grant access. (1) DON activities shall grant access to agency records when a member of the public complies with the provisions of the instruction in this part and there is no FOIA exemption available to withhold the requested information (see subpart D of this part).

(2) In those instances where the requester has not cited FOIA, but the records are determined to be releasable in their entirety, the request shall be honored without requiring the requester to invoke FOIA.

(e) Create a record. (1) A record must exist and be in the possession and control of the DON at the time of the request to be considered subject to the instruction in this part and the FOIA. Accordingly, DON activities need not process requests for records which are not in existence at the time the request is received. In other words, requesters may not have a “standing FOIA request” for release of future records.

(2) There is no obligation to create, compile, or obtain a record to satisfy a FOIA request. However, this is not to be confused with honoring form or format requests (see § 701.8). A DON activity, however, may compile a new record when so doing would result in a more useful response to the requester, or be less burdensome to the agency than providing existing records, and the requester does not object. Cost of creating or compiling such a record may not be charged to the requester unless the fee for creating the record is equal to or less than the fee which would be charged for providing the existing record. Fee assessments shall be in accordance with subpart C of this part.

(3) With respect to electronic data, the issue of whether records are actually created or merely extracted from an existing database is not always readily apparent. Consequently, when responding to FOIA requests for electronic data where creation of a record, programming, or particular format are questionable, DON activities should apply a standard of reasonableness. In other words, if the capability exists to respond to the request, and the effort would be a business as usual approach, then the request should be processed. However, the request need not be processed when the capability to respond does not exist without a significant expenditure of resources, thus not being a normal business as usual approach. As used in this sense, a significant interference with the operation of the DON activity's automated information system would not be a business as usual approach.

(f) Disclosures—(1) Discretionary Disclosures. DON activities shall make discretionary disclosures whenever disclosure would not foreseeably harm an interest protected by a FOIA exemption. A discretionary disclosure is normally not appropriate for records clearly exempt under exemptions (b)(1), (b)(3), (b)(4), (b)(6), (b)(7)(C) and (b)(7)(F). Exemptions (b)(2), (b)(5), and (b)(7)(A), (b)(7)(B), (b)(7)(D) and (b)(7)(E) are discretionary in nature and DON activities are encouraged to exercise discretion whenever possible. Exemptions (b)(4), (b)(6), and (b)(7)(C) cannot be claimed when the requester is the “submitter” of the information. While discretionary disclosures to FOIA requesters constitute a waiver of the FOIA exemption that may otherwise apply, this policy does not create any legally enforceable right.

(2) Public domain. Non-exempt records released under FOIA to a member of the public are considered to be in the public domain. Accordingly, such records may also be made available in reading rooms, in paper form, as well as electronically to facilitate public access.

(3) Limited disclosures. Disclosure of records to a properly constituted advisory committee, to Congress, or to other Federal agencies does not waive a FOIA exemption.

(4) Unauthorized disclosures. Exempt records disclosed without authorization by the appropriate DON official do not lose their exempt status.

(5) Official versus personal disclosures. While authority may exist to disclose records to individuals in their official capacity, the provisions of the instruction in this part apply if the same individual seeks the records in a private or personal capacity.

(6) Distributing information. DON activities are encouraged to enhance access to information by distributing information on their own initiative through the use of electronic information systems, such as the Government Information Locator Service (GILS).

(g) Honor form or format requests. DON activities shall provide the record in any form or format requested by the requester, if the record is readily reproducible in that form or format. DON activities shall make reasonable efforts to maintain their records in forms or formats that are reproducible. In responding to requests for records, DON activities shall make reasonable efforts to search for records in electronic form or format, except when such efforts would significantly interfere with the operation of the DON activities’ automated information system. Such determinations shall be made on a case-by-case basis.

(h) Authenticate documents. Records provided under the instruction in this part shall be authenticated with an appropriate seal, whenever necessary, to fulfill an official Government or other legal function. This service, however, is in addition to that required under the FOIA and is not included in the FOIA fee schedule. DON activities may charge for the service at a rate of $5.20 for each authentication.

§ 701.6Reading rooms.

The FOIA requires that (a)(2) records created on or after 1 November 1996, be made available electronically (starting 1 November 1997) as well as in hard copy, in the FOIA reading room for inspection and copying, unless such records are published and copies are offered for sale. DoD 5400.7-R, “DoD Freedom of Information Act Program,” requires that each DoD Component provide an appropriate facility or facilities where the public may inspect and copy or have copied the records held in their reading rooms. To comply, the Navy FOIA website includes links that assist members of the public in locating Navy libraries, online documents, and Navy electronic reading rooms maintained by SECNAV/CNO, CMC, OGC, JAG and Echelon 2 commands. Although each of these activities will maintain their own document collections on their own servers, the Navy FOIA website provides a common gateway for all Navy online resources. To this end, DON activities shall:

(a) Establish their reading rooms and link them to the Navy FOIA Reading Room Lobby which is found on the Navy FOIA website.

(b) Ensure that responsive documents held by their subordinate activities are also placed in the reading room.

Note to paragraph (b):

SECNAV/ASN and OPNAV offices shall ensure that responsive documents are provided to CNO (N09B30) for placement in the reading room.)

(c) Ensure that documents placed in a reading room are properly excised to preclude the release of personal or contractor-submitted information prior to being made available to the public. In every case, justification for the deletion must be fully explained in writing, and the extent of such deletion shall be indicated on the record which is made publicly available, unless such indication would harm an interest protected by an exemption under which the deletion was made. If technically feasible, the extent of the deletion in electronic records or any other form of record shall be indicated at the place in the record where the deletion was made. However, a DON activity may publish in the Federal Register a description of the basis upon which it will delete identifying details of particular types of records to avoid clearly unwarranted invasions of privacy, or competitive harm to business submitters. In appropriate cases, the DON activity may refer to this description rather than write a separate justification for each deletion. DON activities may remove (a)(2)(D) records from their electronic reading room when the appropriate officials determine that access is no longer necessary.

(d) Should a requester submit a FOIA request for FOIA-processed (a)(2) records, and insist that the request be processed, DON activities shall process the FOIA request. However, DON activities have no obligation to process a FOIA request for 5 U.S.C. 552(a)(2)(A), (B), and (C) [5 U.S.C. 552] records because these records are required to be made public and not FOIA-processed under paragraph (a)(3) of the FOIA.

(e) DON activities may share reading room facilities if the public is not unduly inconvenienced. When appropriate, the cost of copying may be imposed on the person requesting the material in accordance with FOIA fee guidelines (see subpart C of this part).

(f) DON activities shall maintain an index of all available documents. A general index of FOIA-processed (a)(2) records shall be made available to the public, both in hard copy and electronically by 31 December 1999. To comply with this requirement, DON activities shall establish a GILS record for each document it places in a reading room. No (a)(2) materials issued or adopted after 4 July 1967, that are not indexed and either made available or published may be relied upon, used or cited as precedent against any individual unless such individual has actual and timely notice of the contents of such materials. Such materials issued or adopted before 4 July 1967, need not be indexed, but must be made available upon request if not exempted under the instruction in this part.

(g) An index and copies of unclassified Navy instructions, forms, and addresses for DON activities (i.e., the Standard Navy Distribution List (SNDL) are located on the Navy Electronics Directives System (http://neds.nebt.daps.mil/).

(h) DON material published in the Federal Register, such as material required to be published by Section 552(a)(1) of the FOIA, shall be made available by JAG in their FOIA reading room and electronically to the public.

(i) Although not required to be made available in response to FOIA requests or made available in FOIA Reading Rooms, “(a)(1)” materials may, when feasible, be made available to the public in FOIA reading rooms for inspection and copying, and by electronic means. Examples of “(a)(1)” materials are: descriptions of an agency's central and field organization, and to the extent they affect the public, rules of procedures, descriptions of forms available, instruction as to the scope and contents of papers, reports, or examinations, and any amendment, revision, or report of the aforementioned.

§ 701.7Relationship between the FOIA and PA.

Not all requesters are knowledgeable of the appropriate statutory authority to cite when requesting records. In some instances, they may cite neither Act, but will imply one or both Acts. For these reasons, the following guidelines are provided to ensure requesters receive the greatest amount of access rights under both Acts:

(a) If the record is required to be released under the FOIA, the PA does not bar its disclosure. Unlike the FOIA, the PA applies only to U.S. citizens and aliens admitted for permanent residence. Subpart F of this part implements the DON's Privacy Act Program.

(b) Requesters who seek records about themselves contained in a PA system of records and who cite or imply only the PA, will have their requests processed under the provisions of both the PA and the FOIA. If the PA system of records is exempt from the provisions of 5 U.S.C. 552a(d)(1) and the records, or any portion thereof are exempt under the FOIA, the requester shall be so advised with the appropriate PA and FOIA exemption. Appeals shall be processed under both Acts.

(c) Requesters who seek records about themselves that are not contained in a PA system of records and who cite or imply the PA will have their requests processed under the provisions of the FOIA, since the PA does not apply to these records. Appeals shall be processed under the FOIA.

(d) Requesters who seek records about themselves that are contained in a PA system of records and who cite or imply the FOIA or both Acts will have their requests processed under the provisions of both the PA and the FOIA. If the PA system of records is exempt from the provisions of 5 U.S.C. 552a(d)(1), and the records, or any portion thereof are exempt under the FOIA, the requester shall be so advised with the appropriate PA and FOIA exemption. Appeals shall be processed under both Acts.

(e) Requesters who seek access to agency records that are not part of a PA system of records, and who cite or imply the PA and FOIA, will have their requests processed under FOIA, since the PA does not apply to these records. Appeals shall be processed under the FOIA.

(f) Requesters who seek access to agency records and who cite or imply the FOIA will have their requests and appeals processed under the FOIA.

(g) Requesters shall be advised in final responses which Act(s) was (were) used, inclusive of appeal rights.

(h) The time limits for responding to the request will be determined based on the Act cited. For example, if a requester seeks access under the FOIA for his or her personal records which are contained in a PA system of records, the time limits of the FOIA apply.

(i) Fees will be charged based on the kind of records being requested (i.e., FOIA fees if agency records are requested; PA fees for requesters who are seeking access to information contained in a PA system of record which is retrieved by their name and/or personal identifier).

§ 701.8Processing FOIA requests.

Upon receipt of a FOIA request, DON activities shall:

(a) Review the request to ensure it meets the minimum requirements of the FOIA to be processed.

(1) Minimum requirements of a FOIA request. A request must be in writing; cite or imply FOIA; reasonably describe the records being sought so that a knowledgeable official of the agency can conduct a search with reasonable effort; and if fees are applicable, the requester should include a statement regarding willingness to pay all fees or those up to a specified amount or request a waiver or reduction of fees.

(2) If a request does not meet the minimum requirements of the FOIA, DON activities shall apprise the requester of the defect and assist him/her in perfecting the request.

Note to paragraph (a)(2):

The statutory 20 working day time limit applies upon receipt of a “perfected” FOIA request.)

(b) When a requester or his/her attorney requests personally identifiable information in a record, the request may require a notarized signature or a statement certifying under the penalty of perjury that their identity is true and correct. Additionally, written consent of the subject of the record is required for disclosure from a Privacy Act System of records, even to the subject's attorney.

(c) Review description of requested record(s). (1) The FOIA requester is responsible for describing the record he/she seeks so that a knowledgeable official of the activity can locate the record with a reasonable amount of effort. In order to assist DON activities in conducting more timely searches, a requester should endeavor to provide as much identifying information as possible. When a DON activity receives a request that does not reasonably describe the requested record, it shall notify the requester of the defect in writing. The requester should be asked to provide the type of information outlined in this paragraph. DON activities are not obligated to act on the request until the requester responds to the specificity letter. When practicable, DON activities shall offer assistance to the requester in identifying the records sought and in reformulating the request to reduce the burden on the agency in complying with the FOIA. The following guidelines are provided to deal with generalized requests and are based on the principle of reasonable effort. Descriptive information about a record may be divided into two broad categories.

(i) Category I is file-related and includes information such as type of record (for example, memorandum), title, index citation, subject area, date the record was created, and originator.

(ii) Category II is event-related and includes the circumstances that resulted in the record being created or the date and circumstances surrounding the event the record covers.

(2) Generally, a record is not reasonably described unless the description contains sufficient Category I information to permit the conduct of an organized, non random search based on the DON activity's filing arrangements and existing retrieval systems, or unless the record contains sufficient Category II information to permit inference of the Category I elements needed to conduct such a search.

(3) The following guidelines deal with requests for personal records: Ordinarily, when personal identifiers are provided solely in connection with a request for records concerning the requester, only records in Privacy Act system of records that can be retrieved by personal identifiers need be searched. However, if a DON activity has reason to believe that records on the requester may exist in a record system other than a PA system, the DON activity shall search the system under the provisions of the FOIA. In either case, DON activities may request a reasonable description of the records desired before searching for such records under the provisions of the FOIA and the PA. If the records are required to be released under the FOIA, the PA does not bar its disclosure.

(4) The guidelines in paragraph (c)(3) notwithstanding, the decision of the DON activity concerning reasonableness of description must be based on the knowledge of its files. If the description enables the DON activity personnel to locate the record with reasonable effort, the description is adequate. The fact that a FOIA request is broad or burdensome in its magnitude does not, in and of itself, entitle a DON activity to deny the request on the ground that it does not reasonably describe the records sought. The key factor is the ability of the staff to reasonably ascertain and locate which records are being requested.

(2) FOIA fees shall be at the rates prescribed at subpart C of this part.

(3) If fees are applicable, a requester shall be apprised of what category of requester he/she has been placed and provided a complete breakout of fees to include any and all information provided before fees are assessed (e.g., first two hours of search and first 100 pages of reproduction have been provided without charge.)

(4) Forms DD 2086 (for FOIA requests) and 2086-1 (for FOIA requests for technical data) serve as an administrative record of all costs incurred to process a request; actual costs charged to a requester (i.e., search, review, and/or duplication and at what salary level and the actual time expended); and as input to the Annual FOIA Report. Requesters may request a copy of the applicable form to review the time and costs associated with the processing of a request.

(5) Final response letters shall address whether or not fees are applicable or have been waived. A detailed explanation of FOIA fees is provided at subpart C of this part.

(e) Control FOIA Request. Each FOIA request should be date stamped upon receipt; given a case number; and entered into a formal control system to track the request from receipt to response. Coordinators may wish to conspicuously stamp, label, and/or place the request into a brightly colored folder/cover sheet to ensure it receives immediate attention by the action officer.

(f) Enter request into multitrack processing system. When a DON activity has a significant number of pending requests that prevents a response determination being made within 20 working days, the requests shall be processed in a multitrack processing system, based on the date of receipt, the amount of work and time involved in processing the requests, and whether the request qualifies for expedited processing.

(1) DON activities may establish as many queues as they wish, however, at a minimum three processing tracks shall be established, all based on a first-in, first-out concept, and rank ordered by the date of receipt of the request: one track for simple requests, one track for complex requests, and one track for expedited processing. Determinations as to whether a request is simple or complex shall be made by each DON activity.

(2) DON activities shall provide a requester whose request does not qualify for the fastest queue (except for expedited processing), an opportunity to limit in writing by hard copy, facsimile, or electronically the scope of the request in order to qualify for the fastest queue.

(3) This multitrack processing system does not obviate the activity's responsibility to exercise due diligence in processing requests in the most expeditious manner possible.

(4) Referred requests shall be processed according to the original date received by the initial activity and then placed in the appropriate queue.

(5) Establish a separate queue for expedited processing. A separate queue shall be established for requests meeting the test for expedited processing. Expedited processing shall be granted to a requester after the requester requests such and demonstrates a compelling need for the information. Notice of the determination as to whether to grant expedited processing in response to a requester's compelling need shall be provided to the requester within 10 calendar days after receipt of the request in the office which will determine whether to grant expedited access. Once the determination has been made to grant expedited processing, DON activities shall process the request as soon as practicable. Actions by DON activities to initially deny or affirm the initial denial on appeal of a request for expedited processing, and failure to respond in a timely manner shall be subject to judicial review.

(i) Compelling need means that the failure to obtain the records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual.

(ii) Compelling need also means that the information is urgently needed by an individual primarily engaged in disseminating information in order to inform the public concerning actual or alleged Federal Government activity. An individual primarily engaged in disseminating information means a person whose primary activity involves publishing or otherwise disseminating information to the public. Representatives of the news media would normally qualify as individuals primarily engaged in disseminating information. Other persons must demonstrate that their primary activity involves publishing or otherwise disseminating information to the public.

(iii) Urgently needed means that the information has a particular value that will be lost if not disseminated quickly. Ordinarily this means a breaking news story of general public interest. However, information of historical interest only, or information sought for litigation or commercial activities would not qualify, nor would a news media publication or broadcast deadline unrelated to the news breaking nature of the information.

(iv) A demonstration of compelling need by a requester shall be made by a statement certified by the requester to be true and correct to the best of his/her knowledge. This statement must accompany the request in order to be considered and responded to within the 10 calendar days required for decisions on expedited access.

(v) Other reasons that merit expedited processing by DON activities are an imminent loss of substantial due process rights and humanitarian need. A demonstration of imminent loss of substantial due process rights shall be made by a statement certified by the requester to be true and correct to the best of his/her knowledge. Humanitarian need means that disclosing the information will promote the welfare and interests of mankind. A demonstration of humanitarian need shall also be made by a statement certified by the requester to be true and correct to the best of his/her knowledge. Both of these statements must accompany the request in order to be considered and responded to within the 10 calendar days required for decisions on expedited access. Once the decision has been made to expedite the request for either of these reasons, the request may be processed in the expedited processing queue behind those requests qualifying for compelling need.

(6) These same procedures also apply to requests for expedited processing of administrative appeals.

(g) Respond to request within FOIA time limits. Once an activity receives a “perfected” FOIA request, it shall inform the requester of its decision to grant or deny access to the requested records within 20 working days. Activities are not necessarily required to release records within the 20 working days, but access to releasable records should be granted promptly thereafter and the requester apprised of when he/she may expect to receive a final response to his/her request. Naturally, interim releases of documents are encouraged if appropriate. Sample response letters are provided on the Navy FOIA website.

(1) If a significant number of requests, or the complexity of the requests prevents a final response determination within the statutory time period, DON activities shall advise the requester of this fact, and explain how the request will be responded to within its multitrack processing system. A final response determination is notification to the requester that the records are released, or will be released by a certain date, or the records are denied under the appropriate FOIA exemption(s) or the records cannot be provided for one or more of the “other reasons” (see § 701.8(n)). Interim responses acknowledging receipt of the request, negotiations with the requester concerning the scope of the request, the response timeframe, and fee agreements are encouraged; however, such actions do not constitute a final response determination under FOIA.

(2) Formal extension. In those instances where a DON activity cannot respond within the 20 working day time limit, the FOIA provides for extension of initial time limits for an additional 10 working days for three specific situations: the need to search for and collect records from separate offices; the need to examine a voluminous amount of records required by the request; and the need to consult with another agency or agency component. In such instances, naval activities shall apprise requesters in writing of their inability to respond within 20 working days and advise them of their right to appeal to the appellate authority.

Note to paragraph (g)(2):

Formal extension letters require IDA signature.)

(3) Informal extension. A recommended alternative to taking a formal extension is to call the requester and negotiate an informal extension of time with the requester. The advantages include the ability to agree on a mutually acceptable date to respond that exceeds a formal extension of an additional 10 working days, and the letter of confirmation does not require the signature of an IDA. Additionally, it does not impact on the additional days the appellate authority may take when responding to a FOIA appeal.

(h) Conduct a search for responsive records. (1) Conduct a search for responsive records, keeping in mind a test for reasonableness (i.e., file disposition requirements set forth in SECNAVINST 5212.5D, “Navy and Marine Corps Records Disposal Manual”). This includes making a manual search for records as well as an electronic search for records. Do not assume that because a document is old, it does not exist. Rather, ensure that all possible avenues are considered before making a determination that no record could be found (i.e., such as determining if the record was transferred to a federal records center for holding).

(2) Requesters can appeal “adequacy of search.” To preclude unnecessary appeals, you are encouraged to detail your response letter to reflect the search undertaken so the requester understands the process. It is particularly helpful to address the records disposal requirements set forth in SECNAVINST 5212.5D, “Navy and Marine Corps Records Disposal Manual” for the records being sought.

(i) Review documents for release. Once documents have been located, the originator or activity having possession and control is responsible for reviewing them for release and coordinating with other activities/agencies having an interest. The following procedures should be followed:

(2) Documents for which the activity has possession and control should be reviewed for release. If the review official determines that all or part of the documents requested require denial, and the head of the activity is an IDA, he/she shall respond directly to the requester. If, however, the activity head is not an IDA, then the request, a copy of the responsive documents (unexcised), proposed redacted copy of the documents, and a detailed explanation regarding their release must be referred to the IDA for a final release determination and the requester shall be notified in writing of the transfer.

(3) Documents for which the activity does not have possession and control, but has an interest, should be referred to the originator along with any recommendations regarding release (see § 701.9).

(j) Process non-responsive information in responsive documents. DON activities shall interpret FOIA requests liberally when determining which records are responsive to the requests, and may release non-responsive information. However, should DON activities desire to withhold non-responsive information, the following steps shall be accomplished:

(1) Consult with the requester, and ask if the requester views the information as responsive, and if not, seek the requester's concurrence to deletion of non-responsive information without a FOIA exemption. Reflect this concurrence in the response letter.

(2) If the responsive record is unclassified and the requester does not agree to deletion of non-responsive information without a FOIA exemption, release all non-responsive and responsive information which is not exempt. For non-responsive information that is exempt, notify the requester that even if the information were determined responsive, it would likely be exempted (state the appropriate exemption(s).) Advise the requester of the right to request this information under a separate FOIA request. The separate request shall be placed in the same location within the processing queue as the original request.

(3) If the responsive record is classified, and the requester does not agree to deletion of non-responsive information without a FOIA exemption, release all unclassified responsive and non-responsive information which is not exempt. If the non-responsive information is exempt, follow the procedures provided. The classified, non-responsive information need not be reviewed for declassification at this point. Advise the requester than even if the classified information were determined responsive, it would likely be exempt under 5 U.S.C. 552 (b)(1) and other exemptions if appropriate. Advise the requester of the right to request this information under a separate FOIA request. The separate request shall be placed in the same location within the processing queue as the original request.

(k) Withholding/excising information. (1) DON records may only be withheld if they qualify for exemption under one or more of the nine FOIA exemptions/three exclusions and it is determined that a foreseeable harm to an interest protected by those exemptions would result if the information is released. There are nine FOIA exemptions. See subpart D of this part for the scope of each exemption.

(2) Although a FOIA exemption may apply, DON activities are encouraged to consider discretionary disclosures of information when an exemption permits such disclosure (see § 701.5(f).)

(3) Excising documents. The excision of information within a document should be made so that the requester can readily identify the amount of information being withheld and the reason for the withholding. Accordingly, ensure that any deletion of information is bracketed and all applicable exemptions listed. In those instances, where multiple pages of documents are determined to be exempt from disclosure in their entirety, indicate the number of pages being denied and the basis for the denial.

(l) Reasonably segregable information. DON activities must release all “reasonably segregable information” when the meaning of these portions is not distorted by deletion of the denied portions, and when it reasonably can be assumed that a skillful and knowledgeable person could not reasonably reconstruct excised information. When a record is denied in whole, the response to the requester will specifically state that it is not reasonable to segregate portions of the record for release.

(m) Making a discretionary disclosure. A discretionary disclosure to one requester may preclude the withholding of similar information under a FOIA exemption if subsequently requested by the same individual or someone else. The following suggested language should be included with the discretionary disclosure of any record that could be subject to withholding: “The information you requested is subject to being withheld under section (b)(_) of the FOIA. The disclosure of this material to you by the DON is discretionary and does not constitute a waiver of our right to claim this exemption for similar records in the future.”

(n) Other reasons. There are 10 reasons for not complying with a request for a record under FOIA:

(1) No record. The DON activity conducts a reasonable search of files and fails to identify records responsive to the request.

Note to paragraph (n)(1):

Requester must be advised that he/she may appeal the adequacy of search and provided appeal rights. Response letter does not require signature by IDA.)

(2) Referral. The request is referred to another DoD/DON activity or to another executive branch agency for their action.

Note to paragraph (n)(2):

Referral does not need to be signed by IDA.)

(3) Request withdrawn. The requester withdraws request.

Note to paragraph (n)(3):

Response letter does not require signature by IDA.)

(4) Fee-related reason. Requester is unwilling to pay fees associated with the request; is past due in payment of fees from a previous request; or disagrees with the fee estimate.

Note to paragraph (n)(4):

Requester must be advised that he/she may appeal the fee estimate. Response letter does not require signature by IDA.)

(5) Records not reasonably described. A record has not been described with sufficient particularity to enable the DON activity to locate it by conducting a reasonable search.

Note to paragraph (n)(5):

Response letter does not require signature by IDA.)

(6) Not a proper FOIA request for some other reason. When the requester fails unreasonably to comply with procedural requirements, other than those fee-related issues described in paragraph (n)(4), imposed by the instruction in this part and/or other published rules or directives.

Note to paragraph (n)(6):

Response letter does not require signature by IDA.)

(7) Not an agency record. When the requester is provided a response indicating that the requested information was “not an agency record” within the meaning of the FOIA and the instruction in this part.

Note to paragraph (n)(7):

Response letter does not require signature by IDA.)

(8) Duplicate request. When a request is duplicative of another request which has already been completed or currently in process from the same requester.

Note to paragraph (n)(8):

Response letter does not require signature by IDA.

(9) Other (specify). When a FOIA request cannot be processed because the requester does not comply with published rules, other than for those reasons described in paragraphs (n) (1) through (8). DON activities must document the specific discrepancy.

Note to paragraph (n)(9):

Response letter does not require signature by IDA.)

(10) Denial of request. The record is denied in whole or in part in accordance with procedures set forth in 5 U.S.C. 552, DoD 5400.7-R, and the instruction in this part.

Note to paragraph (n)(10):

The requester is advised that he/she may appeal the determination and response letter must be signed by IDA.)

(o) Writing a response letter. FOIA response letters should contain the following information:

(1) The date of the request; when it was received; if records were not located, where the search was conducted and what the records disposal requirements are for those records.

(2) Cut-off dates. Normally, DON activities shall consider the date of receipt of a FOIA request as the cut-off date for a records search. Where a DON activity employs a particular cut-off date, however, it should give notice of that date in the response letter to the requester.

(3) If a request is denied in whole or in part, the denial response letter should cite the exemption(s) claimed; if possible, delineate the kinds of information withheld (i.e., social security numbers, date of birth, home addresses, etc.) as this may satisfy the requester and thus eliminate an appeal; provide appeal rights, and be signed by an IDA. However, there is no requirement that the response contain the same documentation necessary for litigation (i.e., FOIA requesters are not entitled to a Vaughn index (see definition in § 701.39 during the administrative process).

(4) The fees charged or waived; if fees were charged, what category was the requester placed in and provide a breakout of the fees charged (i.e., the first 2 hours of search were waived and so you are being charged for the remaining 4 hours of search at $25 per hour, or $100; the first 100 pages of reproduction were waived and the remaining 400 pages being provided were charged at $.15 per page, resulting in $60 in reproduction fees, for a total of $160). These figures are derived from Form DD 2086 (FOIA Fees) or Form DD 2086-1 (Technical Data Fees).

(5) Sample response letters are provided on the Navy FOIA website.

(p) Press responses. Ensure responses being made to the press are cleared through public affairs channels.

(q) Special mail services. DON activities are authorized to use registered mail, certified mail, certificates of mailing and return receipts. However, their use should be limited to instances where it appears advisable to establish proof of dispatch or receipt of FOIA correspondence.

§ 701.9Referrals.

(a) The DoD/DON FOIA referral policy is based upon the concept of the originator of a record making a release determination on its information. If a DON activity receives a request for records originated by another DoD/DON activity, it should contact the activity to determine if it also received the request, and if not, obtain concurrence to refer the request. In either situation, the requester shall be advised of the action taken, unless exempt information would be revealed.

(b) While referrals to originators of information result in obtaining the best possible decision on release of the information, the policy does not relieve DON activities from the responsibility of making a release decision on a record should the requester object to referral of the request and the record. Should this situation occur, DON activities should coordinate with the originator of the information prior to making a release determination.

(c) A request received by a DON activity having no records responsive to a request shall be referred routinely to another DoD/DON activity, if the other activity has reason to believe it has the requested record. Prior to notifying a requester of a referral to another DoD/DON activity, the DON activity receiving the initial request shall consult with the other DoD/DON activity to determine if that activity's association with the material is exempt. If the association is exempt, the activity receiving the initial request will protect the association and any exempt information without revealing the identity of the protected activity. The protected activity shall be responsible for submitting the justifications required in any litigation.

(d) Any DON activity receiving a request that has been misaddressed shall refer the request to the proper address and advise the requester. DON activities making referrals of requests or records shall include with the referral, a point of contact by name, a telephone number (commercial and DSN), and an e-mail address (if available).

(e) A DON activity shall refer a FOIA request for a record that it holds but was originated by another Executive Branch agency, to them for a release determination and direct response to the requester. The requester shall be informed of the referral, unless it has been determined that notification would reveal exempt information. Referred records shall only be identified to the extent consistent with security requirements.

(f) A DON activity may refer a request for a record that it originated to another activity or agency when the activity or agency has a valid interest in the record, or the record was created for the use of the other agency or activity. In such situations, provide the record and a release recommendation on the record with the referral action. DON activities should include a point of contact and telephone number in the referral letter. If that organization is to respond directly to the requester, apprise the requester of the referral.

(g) Within the DON/DoD, a DON activity shall ordinarily refer a FOIA request and a copy of the record it holds, but that was originated by another DON/DoD activity or that contains substantial information obtained from that activity, to that activity for direct response, after direct coordination and obtaining concurrence from the activity. The requester shall be notified of such referral. In any case, DON activities shall not release or deny such records without prior consultation with the activity, except as provided in paragraph (c) of this section.

(h) Activities receiving a referred request shall place it in the appropriate processing queue based on the date it was initially received by the referring activity/agency.

(i) Agencies outside the DON that are subject to the FOIA. (1) A DON activity may refer a FOIA request for any record that originated in an agency outside the DON or that is based on information obtained from an outside agency to the agency for direct response to the requester after coordination with the outside agency, if that agency is subject to FOIA. Otherwise, the DON activity must respond to the request.

(Note:

DON activities shall not refer documents originated by entities outside the Executive Branch of Government (e.g., Congress, State and local government agencies, police departments, private citizen correspondence, etc.), to them for action and direct response to the requester, since they are not subject to the FOIA).

(2) A DON activity shall refer to the agency that provided the record any FOIA request for investigative, intelligence, or any other type of records that are on loan to the DON for a specific purpose, if the records are restricted from further release and so marked. However, if for investigative or intelligence purposes, the outside agency desires anonymity, a DON activity may only respond directly to the requester after coordination with the outside agency.

§ 701.10Processing requests received from governmental officials.

(a) Members of Congress. Many constituents seek access to information through their Member of Congress. Members of Congress who seek access to records on behalf of their constituent are provided the same information that the constituent would be entitled to receive. There is no need to verify that the individual has authorized the release of his/her record to the Congressional member, since the Privacy Act's “blanket routine use” for Congressional inquiries applies.

(b) Privileged release to U.S. Government officials. DON records may be authenticated and released to U.S. Government officials if they are requesting them in their official capacity on behalf of Federal governmental bodies, whether legislative, executive, administrative, or judicial. To ensure adequate protection of these documents, DON activities shall inform officials receiving records under the provisions of this paragraph that those records are exempt from public release under FOIA. DON activities shall also mark the records as “Privileged” and “Exempt from Public Disclosure” and annotate any special handling instructions on the records. Because such releases are not made under the provisions of the FOIA, they do not impact on future decisions to release/deny requests for the same records to other requesters. Examples of privileged releases are:

(1) In response to a request from a Committee or Subcommittee of Congress, or to either House sitting as a whole.

(2) To the Federal Courts, whenever ordered by officers of the court as necessary for the proper administration of justice.

(3) To other Federal agencies, both executive and administrative, as determined by the head of a DON activity or designee.

(c) State or local government officials. Requests from State or local government officials for DON records are treated the same as any other requester.

(d) Non-FOIA requests from foreign governments. Requests from foreign governments that do not invoke the FOIA shall be referred to the appropriate foreign disclosure channels and the requester so notified. See § 701.11(c) regarding processing FOIA requests from foreign governments and/or their officials.

§ 701.11Processing specific kinds of records.

DON activities that possess copies or receive requests for the following kinds of records shall promptly forward the requests to the officials named in this section and if appropriate apprise the requester of the referral:

(1) Glomar response. In the instance where a DON activity receives a request for records whose existence or nonexistence is itself classifiable, the DON activity shall refuse to confirm or deny the existence or non-existence of the records. This response is only effective as long as it is given consistently. If it were to be known that an agency gave a “Glomar” response only when records do exist and gave a “no records” response otherwise, then the purpose of this approach would be defeated. A Glomar response is a denial and exemption (b)(1) is cited and appeal rights are provided to the requester.

(2) Processing classified documents originated by another activity. DON activities shall refer the request and copies of the classified documents to the originating activity for processing. If the originating activity simply compiled the classified portions of the document from other sources, it shall refer, as necessary, those portions to the original classifying authority for their review and release determination and apprise that authority of any recommendations they have regarding release. If the classification authority for the information cannot be determined, then the originator of the compiled document has the responsibility for making the final determination. Records shall be identified consistent with security requirements. Only after consultation and approval from the originating activity, shall the requester be apprised of the referral. In most cases, the originating activity will make a determination and respond directly to the requester. In those instances where the originating activity determines a Glomar response is appropriate, the referring agency shall deny the request.

(b) Courts-martial records of trial. The release/denial authority for these records is the Office of the Judge Advocate General (Code 20), Washington Navy Yard, Building 111, Washington, DC 20374-1111. Promptly refer the request and/or documents to this activity and apprise the requester of the referral.

(c) Foreign requests/information. (1) FOIA requests received from foreign governments/foreign government officials should be processed as follows:

(i) When a DON activity receives a FOIA request for a record in which an affected DoD/DON activity has a substantial interest in the subject matter, or the DON activity receives a FOIA request from a foreign government, a foreign citizen, or an individual or entity with a foreign address, the DON activity receiving the request shall provide a copy of the request to the affected DON activity.

(ii) Upon receiving the request, the affected activity shall review the request for host nation relations, coordinate with Department of State as appropriate, and if necessary, provide a copy of the request to the appropriate foreign disclosure office for review. Upon request by the affected activity, the DON activity receiving the initial request shall provide a copy of releasable records to the affected activity. The affected activity may further release the records to its host nation after coordination with Department of State if release is in the best interest of the United States Government. If the record is released to the host nation government, the affected DON activity shall notify the DON activity which initially received the request of the release to the host nation.

(iii) Such processing must be done expeditiously so as not to impede the processing of the FOIA request by the DON activity that initially received the request.

(2) Non-U.S. Government Records (i.e., records originated by multinational organizations such as the North Atlantic Treaty Organization (NATO), the North American Air Defense (NORAD) and foreign governments) which are under the possession and control of DON shall be coordinated prior to a final release determination being made. Coordination with foreign governments shall be made through the Department of State.

(d) Government Accounting Office (GAO) documents. (1) On occasion, the DON receives FOIA requests for GAO documents containing DON information, either directly from requesters or as referrals from GAO. Since the GAO is outside of the Executive Branch and therefore not subject to FOIA, all FOIA requests for GAO documents containing DON information will be processed by the DON under the provisions of the FOIA.

(2) In those instances when a requester seeks a copy of an unclassified GAO report, DON activities may apprise the requester of its availability from the Director, GAO Distribution Center, ATTN: DHISF, P.O. Box 6015, Gaithersburg, MD 20877-1450 under the cash sales program.

(e) Judge Advocate General Manual (JAGMAN) investigative records. These records are no longer centrally processed. Accordingly, requests for investigations should be directed to the following officials:

(4) Court or Board of Inquiry—to the Echelon 2 commander over the command that convened the investigation.

(f) Mailing lists. Numerous FOIA requests are received for mailing lists of home addresses or duty addresses of DON personnel. Processing of such requests is as follows:

(1) Home addresses are normally not releasable without the consent of the individuals concerned. This includes lists of home addresses and military quarters’ addresses without the occupant's name (i.e., exemption (b)(6) applies).

(2) Disclosure of lists of names and duty addresses or duty telephone numbers of persons assigned to units that are stationed in foreign territories, routinely deployable, or sensitive, has also been held by the courts to constitute a clearly unwarranted invasion of personal privacy and must be withheld from disclosure under 5 U.S.C. 552(b)(6). General officers and public affairs officers information is releasable. Specifically, disclosure of such information poses a security threat to those service members because it reveals information about their degree of involvement in military actions in support of national policy, the type of Navy and/or Marine Corps units to which they are attached, and their presence or absence from households. Release of such information aids in the targeting of service members and their families by terrorists or other persons opposed to implementation of national policy. Only an extraordinary public interest in disclosure of this information can outweigh the need and responsibility of the DON to protect the tranquility and safety of service members and their families who repeatedly have been subjected to harassment, threats, and physical injury. Units covered by this policy are:

(i) Those located outside of the 50 States, District of Columbia, Commonwealth of Puerto Rico, Guam, U.S. Virgin Islands, and American Samoa.

(ii) Routinely deployable units—Those units that normally deploy from homeport or permanent station on a periodic or rotating basis to meet operational requirements or participate in scheduled exercises. This includes routinely deployable ships, aviation squadrons, operational staffs, and all units of the Fleet Marine Force (FMF). Routinely deployable units do not include ships undergoing extensive yard work or those whose primary mission is support of training, e.g., yard craft and auxiliary aircraft landing training ships.

(iii) Units engaged in sensitive operations. Those primarily involved in training for or conduct of covert, clandestine, or classified missions, including units primarily involved in collecting, handling, disposing, or storing of classified information and materials. This also includes units engaged in training or advising foreign personnel. Examples of units covered by this exemption are nuclear power training facilities, SEAL Teams, Security Group Commands, Weapons Stations, and Communications Stations.

(3) Except as otherwise provided, lists containing names and duty addresses of DON personnel, both military and civilian, who are assigned to units in the Continental United States (CONUS) and U.S. territories shall be released regardless of who has initiated the request.

(4) Exceptions to this policy must be coordinated with CNO (N09B30) or CMC (ARAD) prior to responding to requests, including those from Members of Congress. The policy in paragraphs (f) (1) through (3) should be considered when weighing the releasability of the address or telephone number of a specifically named individual.

(5) DON activities are reminded that e-mail addresses that identify an individual who is routinely deployable, overseas, or assigned to a sensitive unit should not be made available. Additionally, organizational charts for these kinds of units and activities that identify specific members should not be placed on the Internet.

(g) Medical quality assurance documents. The Chief, Bureau of Medicine and Surgery (BUMED) is the release/denial authority for all naval medical quality assurance documents as defined by Title 10, United States Code, Section 1102. Requests for medical quality assurance documents shall be promptly referred to BUMED and the requester notified of the referral.

(h) Mishap investigation reports (MIRs). The Commander, Naval Safety Center (NAVSAFECEN) is the release/denial authority for all requests for mishap investigations or documents which contain mishap information. All requests or documents located which apply shall be promptly referred to the Commander, Naval Safety Center, Code 503, 375 A Street, Norfolk, VA 23511-4399 for action. Telephonic liaison with NAVSAFECEN is encouraged. The requester shall be notified of the referral.

(i) National Security Council (NSC)/White House. (1) DON activities that receive requests for records of NSC, the White House, or the White House/Military Office (WHMO) shall process the requests.

(2) DON records in which the NSC or the White House has a concurrent reviewing interest, and NSC, White House, or WHMO records discovered in DON activity files, shall be forwarded to CNO (N09B30), 2000 Navy Pentagon, Washington, DC 20350-2000. N09B30, in turn, will coordinate the request directly with DFOISR, so DFOISR can coordinate the request with NSC, White House, or WHMO. After coordination, the records will be returned to the DON activity for their direct response to the requester. During the interim, DON activities should notify the requester that they are coordinating their request and a response will therefore be delayed.

(j) Naval attache documents/information. The Director, Defense Intelligence Agency (DIA) has the responsibility for reviewing for release/denial any naval attache-originated documents/information. Accordingly, FOIA requests for naval attache documents or copies of the documents located in DON files or referred in error to a DON activity shall be promptly referred to the Chief, Freedom of Information Act Staff, Defense Intelligence Agency (SVI-1), Washington, DC 20340-5100 for action and direct response to the requester. Ensure that the requester is notified in writing of the transfer to DIA.

(k) Naval Audit Service reports. The Director, Naval Audit Service is the release/denial authority for their reports. All requests or documents located which apply shall be promptly referred to the Director, Naval Audit Service, 5611 Columbia Pike, NASSIF Building, Falls Church, VA 22041-5080 for action. The requester shall be notified of the referral.

(l) Naval Criminal Investigative Service (NCIS) reports. The Director, NCIS is the release/denial authority for all NCIS reports/information. All requests for and copies of NCIS reports located in DON activity files shall be promptly referred to the Director, NCIS (Code OOJF), Washington Navy Yard, Building 111, 716 Sicard Street, SE, Washington, DC 20388-5380 for action and, if appropriate, the requester so notified. Telephonic liaison with NCIS Headquarters is strongly encouraged.

(m) Naval Inspector General (NAVINSGEN) reports. (1) NAVINSGEN is the release/denial authority for all investigations and inspections conducted by or at the direction of NAVINSGEN and for any records held by any command that relate to Navy hotline complaints that have been referred to the NAVINSGEN. Accordingly, such actions shall be promptly referred to the Naval Inspector General (Code OOL), Building 200, Room 100, Washington Navy Yard, 901 M Street, SE, Washington, DC 20374-5006 for action and, if appropriate, the requester so notified.

(2) Requests for local command inspector general reports which have not been referred to NAVINSGEN should be processed by the command that conducted the investigation and NAVINSGEN advised as necessary.

(3) The Deputy Naval Inspector General for Marine Corps Matters (DNIGMC) is the release/denial authority for all investigations conducted by the DNIGMC. Requests for local Marine Corps command Inspector General reports shall be coordinated with the DNIGMC.

(n) Naval Nuclear Propulsion Information (NNPI). The Director, Naval Nuclear Propulsion Program (CNO (NOONB)/NAVSEA (08)) is the release/denial authority for all information and requests concerning NNPI. Naval activities receiving such requests are responsible for searching their files for responsive records. If no documents are located, the naval activity shall respond to the requester and provide CNO (NOONB) with a copy of the request and response. If documents are located, the naval activity shall refer the request, responsive documents, and a recommendation regarding release to the Director, Naval Nuclear Propulsion Program (NOONB), 2000 Navy Pentagon, Washington, DC 20350-2000, who will make the final release determination to the requester, after coordinating the release through DoD activities.

(o) Naval Telecommunications Procedures (NTP) publications. The Commander, Naval Computer and Telecommunications Command is the release/denial authority for NTP publications. All requests or documents located which apply shall be promptly referred to the Commander, Naval Computer and Telecommunications Command (Code NOOJ), 4401 Massachusetts Avenue, NW, Washington, DC 20394-5460 for action and direct response to the requester.

(p) News media requests. (1) Respond promptly to requests received from news media representatives through public information channels, if the information is releasable under FOIA. This eliminates the requirement to invoke FOIA and may result in timely information being made available to the public.

(2) In those instances where records/information are not releasable, either in whole or in part, or are not currently available for a release consideration, Public Affairs Officers shall promptly advise the requester of where and how to submit a FOIA request.

(3) DON activities receiving and processing requests from members of the press shall ensure that responses are cleared through their public affairs channels.

(q) Records originated by other government agencies. (1) A DON activity may refer a FOIA request for any record that originated in an agency outside the DON or that is based on information obtained from an outside agency to the cognizant agency for direct response to the requester after coordination with the outside agency, if that agency is subject to FOIA. Otherwise, the DON activity must respond to the request.

(2) A DON activity shall refer to the agency that provided the record any FOIA request for investigative, intelligence, or any other type of records that are on loan to the DON for a specific purpose, if the records are restricted from further release and so marked. However, if for investigative or intelligence purposes, the outside agency desires anonymity, a DON activity may only respond directly to the requester after coordination with the outside agency.

(r) Submitter documents. (1) When a request is received for a record containing confidential commercial information that was submitted to the Government, the requirements of Executive Order 12600 shall apply. Specifically, the submitter shall be notified of the request (telephonically, by letter, or by facsimile) and afforded a reasonable amount of time (anywhere from 2 weeks to a month depending on the circumstances) to present any objections concerning release, unless it is clear there can be no valid basis for objection. For example, the record was provided with actual or presumptive knowledge of the submitter that it would be made available to the public upon request.

(2) The DON activity will evaluate any objections and negotiate with the submitter as necessary. When a substantial issue has been raised, the DON activity may seek additional information from the submitter and afford the submitter and requester reasonable opportunities to present their arguments in legal and substantive issues prior to making an agency determination.

(3) The final decision to disclose information claimed to be exempt under exemption (b)(4) shall be made by an official at least equivalent in rank to the IDA and the submitter advised that he or she may seek a restraining order or take court action to prevent the release. The submitter is given 10 days to take action.

(4) Should the submitter take such action, the requester will be notified and no action will be taken on the request until the outcome of the court action is known.

(a) Appellate authorities. SECNAV has delegated his appellate authority to the JAG and the DONGC to act on matters under their cognizance. Their responsibilities include adjudicating appeals made to SECNAV on: denials of requests for copies of DON records or portions thereof; disapproval of a fee category claim by a requester; disapproval of a request to waive or reduce fees; disputes regarding fee estimates; reviewing determinations not to grant expedited access to agency records, and reviewing “no record” determinations when the requester considers such responses adverse in nature. They have the authority to release or withhold records, or portions thereof; to waive or reduce fees; and to act as required by SECNAV for appeals under 5 U.S.C. 552 and this instruction. The JAG has further delegated this appellate authority to the Assistant Judge Advocate General (Civil Law). The DONGC has further delegated this appellate authority to the Principal Deputy General Counsel, the Deputy General Counsel, and the Associate General Counsel (Management).

(1) In their capacity, appellate authorities will serve as principal points of contact on DON FOIA appeals and litigation; receive and track FOIA appeals and ensure responses are made in compliance with 5 U.S.C. 552, DoD 5400.7 and 5400.7-R, and the instruction in this part; complete responsive portions of the Annual FOIA Report that addresses actions on appeals and litigation costs during the fiscal year and submit to CNO (N09B30); provide CNO (N09B30) with a copy of all appeal determinations as they are issued; and keep CNO (N09B30) informed in writing of all FOIA lawsuits as they are filed against the DON. Appellate authorities shall facsimile a copy of the complaint to CNO (N09B30) for review and provide updates to CNO (N09B30) to review and disseminate to DFOISR.

(2) OGC's cognizance: Legal advice and services to SECNAV and the Civilian Executive Assistants on all matters affecting DON; legal services in subordinate commands, organizations, and activities in the areas of business and commercial law, real and personal property law, intellectual property law, fiscal law, civilian personnel and labor law, environmental law, and in coordination with the JAG, such other legal services as may be required to support the mission of the Navy and the Marine Corps, or the discharge of the General Counsel's responsibilities; and conducting litigation involving the areas enumerated above and oversight of all litigation affecting the DON.

(3) JAG's cognizance: In addition to military law, all matters except those falling under the cognizance of the DONGC.

(b) Appellants may file an appeal if they have been denied information in whole or in part; have been denied a waiver or reduction of fees; have been denied/have not received a response within 20 working days; or received a “no record” response or wish to challenge the “adequacy of a search” that was made. Appeal procedures also apply to the disapproval of a fee category claim by a requester, disputes regarding fee estimates, review of an expedited basis determination not to grant expedited access to agency records, or any determination found to be adverse in nature by the requester.

(c) Action by the appellate authority. (1) Upon receipt, JAG (34) or Assistant to the General Counsel (FOIA) will promptly notify the IDA of the appeal. In turn, the IDA will provide the appellate authority with the following documents so that a determination can be made: a copy of the request, responsive documents both excised and unexcised, a copy of the denial letter, and supporting rationale for continued withholding. IDAs shall respond to the appellate authority within 10 working days.

(2) Final determinations on appeals normally shall be made within 20 working days after receipt. When the appellate authority has a significant number of appeals preventing a response determination within 20 working days, the appeals shall be processed in a multitrack processing system based, at a minimum, on the three processing tracks established for initial requests.

(3) If the appeal is received by the wrong appellate authority, the time limits do not take effect until it is received by the right one. If, however, the time limit for responding cannot be met, the appellate authority shall advise the appellant that he/she may consider his/her administrative remedies exhausted. However, he/she may await a substantive response without prejudicing his/her right of judicial remedy. Nonetheless, the appellate authority will continue to process the case expeditiously, whether or not the appellant seeks a court order for release of records. In such cases, a copy of the response will be provided to the Department of Justice (DOJ).

(e) Appeal letter requirements. The appellant shall file a written appeal with the cognizant appellate authority (i.e., DONGC or JAG). The appeal should include a copy of the DON response letter and supporting rationale on why the appeal should be granted.

(f) Consultation/coordination. (1) The Special Assistant for Naval Investigative Matters and Security (CNO (N09N)) may be consulted to resolve inconsistencies or disputes involving classified records.

(2) Direct liaison with officials within DON and other interested Federal agencies is authorized at the discretion of the appellate authority, who also coordinates with appropriate DoD and DOJ officials.

(4) Final refusal involving issues not previously resolved or that the DON appellate authority knows to be inconsistent with rulings of other DoD components ordinarily should not be made before consultation with the DoD Office of General Counsel (OGC).

(5) Tentative decisions to deny records that raise new and significant legal issues of potential significance to other agencies of the Government shall be provided to the DoD OGC.

(g) Copies of final appeal determinations. Appellate authorities shall provide copies of final appeal determinations to the activity affected and to CNO (N09B30) as appeals are decided.

(h) Denying an appeal. The appellate authority must render his/her decision in writing with a full explanation as to why the appeal is being denied along with a detailed explanation of the basis for refusal with regard to the applicable statutory exemption(s) invoked. With regard to denials involving classified information, the final refusal should explain that a declassification review was undertaken and based on the governing Executive Order and implementing security classification guides (identify the guides), the information cannot be released and that information being denied does not contain meaningful portions that are reasonably segregable. In all instances, the final denial letter shall contain the name and position title of the official responsible for the denial and advise the requester of the right to seek judicial review.

(i) Granting an appeal. The appellate authority must render his/her decision in writing. When an appellate authority makes a determination to release all or a portion of records withheld by an IDA, a copy of the releasable records should be promptly forwarded to the requester after compliance with any procedural requirements, such as payment of fees.

(j) Processing appeals made under PA and FOIA. When denials have been made under the provisions of PA and FOIA, and the denied information is contained in a PA system of records, the appeal shall be processed under both PA and FOIA. If the denied information is not maintained in a PA system of records, the appeal shall be processed under FOIA.

(k) Response letters. (1) When an appellate authority makes a final determination to release all or portion of records withheld by an IDA, a written response and a copy of the records so released should be forwarded promptly to the requester after compliance with any preliminary procedural requirements, such as payment of fees.

(2) Final refusal of an appeal must be made in writing by the appellate authority or by a designated representative. The response at a minimum shall include the following:

(i) The basis for the refusal shall be explained to the requester in writing, both with regard to the applicable statutory exemption or exemptions invoked under the provisions of the FOIA, and with respect to other issues appealed for which an adverse determination was made.

(ii) When the final refusal is based in whole or in part on a security classification, the explanation shall include a determination that the record meets the cited criteria and rationale of the governing Executive Order, and that this determination is based on a declassification review, with the explanation of how that review confirmed the continuing validity of the security classification.

(iii) The final denial shall include the name and title or position of the official responsible for the denial.

(iv) In the case of appeals for total denial of records, the response shall advise the requester that the information being denied does not contain meaningful portions that are reasonably segregable.

(v) When the denial is based upon an exemption (b)(3) statute, the response, in addition to citing the statute relied upon to deny the information, shall state whether a court has upheld the decision to withhold the information under the statute, and shall contain a concise description of the scope of the information withheld.

(vi) The response shall advise the requester of the right to judicial review.

(l) Time limits/requirements. (1) A FOIA appeal has been received by a DON activity when it reaches the appellate authority having jurisdiction. Misdirected appeals should be referred expeditiously to the proper appellate authority.

(2) The requester shall be advised to file an appeal so that it is postmarked no later than 60 calendar days after the date of the initial denial letter. If no appeal is received, or if the appeal is postmarked after the conclusion of the 60 day period, the case may be considered closed. However, exceptions may be considered on a case-by-case basis.

(3) In cases where the requester is provided several incremental determinations for a single request, the time for the appeal shall not begin until the date of the final response. Requests and responsive records that are denied shall be retained for a period of 6 years to meet the statute of limitations requirement.

(4) Final determinations on appeals normally shall be made within 20 working days after receipt. When a DON appellate authority has a significant number of appeals preventing a response determination within 20 working days, the appeals shall be processed in a multitrack processing system, based at a minimum on the three processing tracks established for initial requests. (See § 701.8(f)).

(5) If additional time is needed due to unusual circumstances, the final decision may be delayed for the number of working days (not to exceed 10) that were not used as additional time for responding to the initial request.

(6) If a determination cannot be made and the requester notified within 20 working days, the appellate authority shall acknowledge to the requester, in writing, the date of receipt of the appeal, the circumstances surrounding the delay, and the anticipated date for substantive response. Requesters shall be advised that, if the delay exceeds the statutory extension provision or is for reasons other than the unusual circumstances, they may consider their administrative remedies exhausted. They may, however, without prejudicing their right of judicial remedy, await a substantive response. The appellate authority shall continue to process the case expeditiously.

(m) FOIA litigation. The appellate authority is responsible for providing CNO (N09B30) with a copy of any FOIA litigation filed against the DON and any subsequent status of the case. CNO (N09B30) will, in turn, forward a copy of the complaint to DFOISR for their review.

Section (a)(1) of the FOIA requires publication in the Federal Register of descriptions of agency organizations, functions, substantive rules, and statements of general policy.

§ 701.145 U.S.C. 552(a)(2) materials.

Section (a)(2) of the FOIA requires that certain materials routinely be made available for public inspection and copying. The (a)(2) materials are commonly referred to as “reading room” materials and are required to be indexed to facilitate public inspection. (a)(2) materials consist of:

(a) 5 U.S.C. 552(a)(2)(A) records. Final opinions, including concurring and dissenting opinions, and orders made in the adjudication of cases, as defined in 5 U.S.C. 551, that may be cited, used, or relied upon as precedents in future adjudications.

(b) 5 U.S.C. 552(a)(2)(B) records. Statements of policy and interpretations that have been adopted by the agency and are not published in the Federal Register.

(c) 5 U.S.C. 552(a)(2)(C) records. Administrative staff manuals and instructions, or portions thereof, that establish DON policy or interpretations of policy that affect a member of the public. This provision does not apply to instructions for employees on tactics and techniques to be used in performing their duties, or to instructions relating only to the internal management of the DON activity. Examples of manuals and instructions not normally made available are:

(1) Those issued for audit, investigation, and inspection purposes, or those that prescribe operational tactics, standards of performance, or criteria for defense, prosecution, or settlement of cases.

(d) 5 U.S.C. 552(a)(2)(D) records. Those (a)(2) records, which because of the nature of the subject matter, have become or are likely to become the subject of subsequent requests for substantially the same records. These records are referred to as FOIA-processed (a)(2) records. DON activities shall decide on a case-by-case basis whether records fall into this category based on the following factors: previous experience of the DON activity with similar records; particular circumstances of the records involved, including their nature and the type of information contained in them; and/or the identity and number of requesters and whether there is widespread press, historic, or commercial interest in the records.

(1) This provision is intended for situations where public access in a timely manner is important and it is not intended to apply where there may be a limited number of requests over a short period of time from a few requesters. DON activities may remove the records from this access medium when the appropriate officials determine that access is no longer necessary.

(2) Should a requester submit a FOIA request for FOIA-processed (a)(2) records and insist that the request be processed under FOIA, DON activities shall process the FOIA request. However, DON activities have no obligation to process a FOIA request for (a)(2)(A), (B) and (C) records because these records are required to be made public and not FOIA-processed under paragraph (a)(3) of the FOIA.

(e) However, agency records that are withheld under FOIA from public disclosure, based on one or more of the FOIA exemptions, do not qualify as (a)(2) materials and need not be published in the Federal Register or made available in a library reading room.

§ 701.155 U.S.C. 552(a)(3) materials.

Agency records which are processed for release under the provisions of the FOIA.

§ 701.16Administrative appeal.

A request made by a FOIA requester asking the appellate authority (JAG or OGC) to reverse a decision to: withhold all or part of a requested record; deny a fee category claim by a requester; deny a request for expedited processing due to demonstrated compelling need; deny a request for a waiver or reduction of fees; deny a request to review an initial fee estimate; and confirm that no records were located during the initial search. FOIA requesters may also appeal a non-response to a FOIA request within the statutory time limits.

§ 701.17Affirmative information disclosure.

This is where a DON activity makes records available to the public on its own initiative. In such instance, the DON activity has determined in advance that a certain type of records or information is likely to be of such interest to members of the public, and that it can be disclosed without concern for any FOIA exemption sensitivity. Affirmative disclosures can be of mutual benefit to both the DON and the members of the public who are interested in obtaining access to such information.

§ 701.18Agency record.

Agency records are either created or obtained by an agency and under agency control at the time of the FOIA request. Agency records are stored as various kinds of media, such as:

(a) Products of data compilation (all books, maps, photographs, machine readable materials, inclusive of those in electronic form or format, or other documentary materials), regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law in connection with the transaction of public business and in Department of the Navy possession and control at the time the FOIA request is made.

(b) Care should be taken not to exclude records from being considered agency records, unless they fall within one of the following categories:

(2) Anything that is not a tangible or documentary record, such as an individual's memory or oral communication.

(3) Personal records of an individual not subject to agency creation or retention requirements, created and maintained primarily for the convenience of an agency employee, and not distributed to other agency employees for their official use. Personal papers fall into three categories: those created before entering Government service; private materials brought into, created, or received in the office that were not created or received in the course of transacting Government business, and work-related personal papers that are not used in the transaction of Government business.

(4) A record must exist and be in the possession and control of the DON at the time of the request to be considered subject to this instruction and the FOIA. There is no obligation to create, compile, or obtain a record to satisfy a FOIA request.

(5) Hard copy or electronic records, which are subject to FOIA requests under 5 U.S.C. 552(a)(3), and which are available to the public through an established distribution system, or through the Federal Register, the National Technical Information Service, or the Internet, normally need not be processed under the provisions of the FOIA. If a request is received for such information, DON activities shall provide the requester with guidance, inclusive of any written notice to the public, on how to obtain the information. However, if the requester insists that the request be processed under the FOIA, then process the request under FOIA.

§ 701.19Appellate authority.

SECNAV has delegated the OGC and JAG to review administrative appeals of denials of FOIA requests on his behalf and prepare agency paperwork for use by the DOJ in defending a FOIA lawsuit. JAG is further authorized to delegate this authority to a designated Assistant JAG. The authority of OGC is further delegated to the Principal Deputy General Counsel, the Deputy General Counsel, and the Associate General Counsel (Management).

§ 701.20Discretionary disclosure.

The decision to release information that could qualify for withholding under a FOIA exemption, but upon review the determination has been made that there is no foreseeable harm to the Government for releasing such information. Discretionary disclosures do not apply to exemptions (b)(1), (b)(3), (b)(4), (b)(6) and (b)(7)(C).

§ 701.21Electronic record.

Records (including e-mail) which are created, stored, and retrieved by electronic means.

§ 701.22Exclusions.

The FOIA contains three exclusions (c)(1), (c)(2) and (c)(3) which expressly authorize Federal law enforcement agencies for especially sensitive records under certain specified circumstances to treat the records as not subject to the requirements of the FOIA.

§ 701.23Executive Order 12958.

Revoked Executive Order 12356 on October 14, 1995 and is the basis for claiming that information is currently and properly classified under (b)(1) exemption of the FOIA. It sets forth new requirements for classifying and declassifying documents. It recognizes both the right of the public to be informed about the activities of its government and the need to protect national security information from unauthorized or untimely disclosure.

§ 701.24Federal agency.

A Federal agency is any executive department, military department, Government corporation, Government-controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.

§ 701.255 U.S.C. 552, Freedom of Information Act (FOIA).

An access statute that pertains to agency records of the Executive Branch of the Federal Government, including the Executive Office of the President and independent regulatory agencies.

Note to § 701.25:

Records maintained by State governments, municipal corporations, by the courts, by Congress, or by companies and private citizens do not fall under this Federal statute)

§ 701.26FOIA exemptions.

There are nine exemptions that identify certain kinds of records/information that qualify for withholding under FOIA. See subpart D of this part for a detailed explanation of each exemption.

§ 701.27FOIA fee terms location.

The FOIA fee terms can be found in subpart C of this part.

§ 701.28FOIA request.

A written request for DON records, made by “any person” including a member of the public (U.S. or foreign citizen/entity), an organization, or a business, but not including a Federal agency or a fugitive from the law that either explicitly or implicitly invokes the FOIA by citing DoD FOIA regulations or the instruction in this part. FOIA requests can be made for any purpose whatsoever, with no showing of relevancy required. Because the purpose for which records are sought has no bearing on the merits of the request, FOIA requesters do not have to explain or justify their requests. Written requests may be received by postal service or other commercial delivery means, by facsimile or electronically.

§ 701.29Glomar response.

Refusal by the agency to either confirm or deny the existence or non-existence of records responsive to a FOIA request. See exemptions (b)(1), (b)(6), and (b)(7)(C) at subpart D of this part.

§ 701.30Initial Denial Authority (IDA).

SECNAV has delegated authority to a limited number of officials to act on his behalf to withhold records under their cognizance that are requested under the FOIA for one or more of the nine categories of records exempt from mandatory disclosure; to deny a fee category claim by a requester; to deny a request for expedited processing due to demonstrated compelling need; to deny or grant a request for waiver or reduction of fees when the information sought relates to matters within their respective geographical areas of responsibility or chain of command; fees; to review a fee estimate; and to confirm that no records were located in response to a request. IDAs may also grant access to requests.

§ 701.31Mosaic or compilation response.

The concept that apparently harmless pieces of information when assembled together could reveal a damaging picture. See exemption (b)(1) at subpart D of this part.

§ 701.32Perfected request.

A request which meets the minimum requirements of the FOIA to be processed and is received by the DON activity having possession and control over the documents/information.

§ 701.33Public domain.

Agency records released under the provisions of FOIA and the instruction in this part to a member of the public.

§ 701.34Public interest.

The interest in obtaining official information that sheds light on a DON activity's performance of its statutory duties because the information falls within the statutory purpose of the FOIA to inform citizens what their government is doing. That statutory purpose, however, is not fostered by disclosure of information about private citizens accumulated in various governmental files that reveals nothing about an agency's or official's own conduct.

§ 701.35Reading room.

Location where (a)(2) materials are made available for public inspection and copying.

§ 701.36Release authorities.

Commanding officers and heads of Navy and Marine Corps shore activities or their designees are authorized to grant requests on behalf of SECNAV for agency records under their possession and control for which no FOIA exemption applies. As necessary, they will coordinate releases with other officials who may have an interest in the releasability of the record.

§ 701.37Reverse FOIA.

When the “submitter” of information, usually a corporation or other business entity, that has supplied the agency with data on its policies, operations and products, seeks to prevent the agency that collected the information from revealing the data to a third party in response to the latter's FOIA request.

§ 701.38Technical data.

Recorded information, regardless of form or method of the recording, of a scientific or technical nature (including computer software documentation).

§ 701.39Vaughn index.

Itemized index, correlating each withheld document (or portion) with a specific FOIA exemption(s) and the relevant part of the agency's nondisclosure justification. The index may contain such information as: date of document; originator; subject/title of document; total number of pages reviewed; number of pages of reasonably segregable information released; number of pages denied; exemption(s) claimed; justification for withholding; etc. FOIA requesters are not entitled to a Vaughn index during the administrative process.

Subpart C—FOIA Fees§ 701.40Background.

(a) The DON follows the uniform fee schedule developed by DoD and established to conform with the Office of Management and Budget's (OMB's) Uniform Freedom of Information Act Fee Schedule and Guidelines.

(b) Fees reflect direct costs for search; review (in the case of commercial requesters); and duplication of documents, collection of which is permitted by the FOIA. They are neither intended to imply that fees must be charged in connection with providing information to the public in the routine course of business, nor are they meant as a substitute for any other schedule of fees, which does not supersede the collection of fees under the FOIA.

(c) FOIA fees do not supersede fees chargeable under a statute specifically providing for setting the level of fees for particular types of records. For example, 5 U.S.C. 552 (a)(4)(A)(vi) enables a Government agency such as the Government Printing Office (GPO) or the National Technical Information Service (NTIS), to set and collect fees. DON activities should ensure that when documents that would be responsive to a request are maintained for distribution by agencies operating statutory-based fee schedule programs, such as GPO or NTIS, they inform requesters of the steps necessary to obtain records from those sources.

§ 701.41FOIA fee terms.

(a) Direct costs means those expenditures a DON activity actually makes in searching for, reviewing (in the case of commercial requesters), and duplicating documents to respond to a FOIA request. Direct costs include, for example, the salary of the employee performing the work (the basic rate of pay for the employee plus 16 percent of that rate to cover benefits), and the costs of operating duplicating machinery. These factors have been included in the fee rates prescribed in this subpart. Not included in direct costs are overhead expenses such as costs of space, heating or lighting the facility in which the records are stored.

(b) Duplication refers to the process of making a copy of a document in response to a FOIA request. Such copies can take the form of paper copy, microfiche, audiovisual, or machine readable documentation (e.g., magnetic tape or disc), among others. Every effort will be made to ensure that the copy provided is in a form that is reasonably usable, the requester shall be notified that the copy provided is the best available, and that the activity's master copy shall be made available for review upon appointment. For duplication of computer tapes and audiovisual, the actual cost, including the operator's time, shall be charged. In practice, if a DON activity estimates that assessable duplication charges are likely to exceed $25.00, it shall notify the requester of the estimate, unless the requester has indicated in advance his or her willingness to pay fees as high as those anticipated. Such a notice shall offer a requester the opportunity to confer with activity personnel with the object of reformulating the request to meet his or her needs at a lower cost.

(c) Review refers to the process of examining documents located in response to a FOIA request to determine whether one or more of the statutory exemptions permit withholding. It also includes processing the documents for disclosure, such as excising them for release. Review does not include the time spent resolving general legal or policy issues regarding the application of exemptions. It should be noted that charges for commercial requesters may be assessed only for the initial review. DON activities may not charge for reviews required at the administrative appeal level of an exemption already applied. However, records or portions of records withheld in full under an exemption that is subsequently determined not to apply may be reviewed again to determine the applicability of other exemptions not previously considered. The costs for such a subsequent review would be properly assessable.

(d) Search refers to time spent looking, both manually and electronically, for material that is responsive to a request. Search also includes a page-by-page or line-by-line identification (if necessary) of material in the record to determine if it, or portions thereof are responsive to the request. DON activities should ensure that searches are done in the most efficient and least expensive manner so as to minimize costs for both the activity and the requester. For example, activities should not engage in line-by-line searches when duplicating an entire document known to contain responsive information would prove to be the less expensive and quicker method of complying with the request. Time spent reviewing documents in order to determine whether to apply one or more of the statutory exemptions is not search time, but review time.

(1) DON activities may charge for time spent searching for records, even if that search fails to locate records responsive to the request.

(2) DON activities may also charge search and review (in the case of commercial requesters) time if records located are determined to be exempt from disclosure.

(3) In practice, if the DON activity estimates that search charges are likely to exceed $25.00, it shall notify the requester of the estimated amount of fees, unless the requester has indicated in advance his or her willingness to pay fees as high as those anticipated. Such a notice shall offer the requester the opportunity to confer with activity personnel with the object of reformulating the request to meet his or her needs at a lower cost.

§ 701.42Categories of requesters—applicable fees.

(a) Commercial requesters refers to a request from, or on behalf of one who seeks information for a use or purpose that furthers the commercial, trade, or profit interest of the requester or the person on whose behalf the request is made. In determining whether a requester properly belongs in this category, DON activities must determine the use to which a requester will put the documents requested. More over, where an activity has reasonable cause to doubt the use to which a requester will put the records sought, or where that use is not clear from the request itself, it should seek additional clarification before assigning the request to a specific category.

(1) Fees shall be limited to reasonable standard charges for document search, review and duplication when records are requested for commercial use. Requesters must reasonably describe the records sought.

(2) When DON activities receive a request for documents for commercial use, they should assess charges which recover the full direct costs of searching for, reviewing for release, and duplicating the records sought. Commercial requesters (unlike other requesters) are not entitled to 2 hours of free search time, nor 100 free pages of reproduction of documents. Moreover, commercial requesters are not normally entitled to a waiver or reduction of fees based upon an assertion that disclosure would be in the public interest. However, because use is the exclusive determining criteria, it is possible to envision a commercial enterprise making a request that is not for commercial use. It is also possible that a non-profit organization could make a request that is for commercial use. Such situations must be addressed on a case-by-case basis.

(b) Educational Institution refers to a pre-school, a public or private elementary or secondary school, an institution of graduate high education, an institution of undergraduate higher education, an institution of professional education, and an institution of vocational education, which operates a program or programs of scholarly research.

(1) Fees shall be limited to only reasonable standard charges for document duplication (excluding charges for the first 100 pages) when the request is made by an educational institution whose purpose is scholarly research. Requesters must reasonably describe the records sought.

(2) Requesters must show that the request is being made under the auspices of a qualifying institution and that the records are not sought for commercial use, but in furtherance of scholarly research.

(3) Fees shall be waived or reduced in the public interest if criteria of § 701.58 have been met.

(c) Non-commercial Scientific Institution refers to an institution that is not operated on a “commercial” basis and that is operated solely for the purpose of conducting scientific research, the results of which are not intended to promote any particular product or industry.

(1) Fees shall be limited to only reasonable standard charges for document duplication (excluding the first 100 pages) when the request is made by a non-commercial scientific institution whose purpose is scientific research. Requesters must reasonably describe the records sought.

(2) Requesters must show that the request is being made under the auspices of a qualifying institution and that the records are not sought for commercial use, but in furtherance of or scientific research.

(d) Representative of the news media. (1) Refers to any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term “news” means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations broadcasting to the public at large, and publishers of periodicals (but only in those instances when they can qualify as disseminators of “news”) who make their products available for purchase or subscription by the general public. These examples are not meant to be all-inclusive. Moreover, as traditional methods of news delivery evolve (e.g., electronic dissemination of newspapers through telecommunications services), such alternative media would be included in this category. In the case of “freelance” journalists, they may be regarded as working for a news organization if they can demonstrate a solid basis for expecting publication through that organization, even though not actually employed by it. A publication contract would be the clearest proof, but DON activities may also look to the past publication record of a requester in making this determination.

(2) To be eligible for inclusion in this category, a requester must meet the criteria established in paragraph (d)(1), and his or her request must not be made for commercial use. A request for records supporting the news dissemination function of the requester shall not be considered to be a request that is for a commercial use. For example, a document request by a newspaper for records relating to the investigation of a defendant in a current criminal trial of public interest could be presumed to be a request from an entity eligible for inclusion in this category, and entitled to records at the cost of reproduction alone (excluding charges for the first 100 pages).

(3) Representative of the news media does not include private libraries, private repositories of Government records, information vendors, data brokers or similar marketers of information whether to industries and businesses, or other entities.

(4) Fees shall be limited to only reasonable standard charges for document duplication (excluding charges for the first 100 pages) when the request is made by a representative of the news media. Requesters must reasonably describe the records sought. Fees shall be waived or reduced if the fee waiver criteria have been met.

(e) All other requesters. DON activities shall charge requesters who do not fit into any of the categories described in paragraph (a) through (d) fees which recover the full direct cost of searching for and duplicating records, except that the first 2 hours of search time and the first 100 pages of duplication shall be furnished without charge. Requesters must reasonably describe the records sought. Requests from subjects about themselves will continue to be treated under the fee provisions of the Privacy Act of 1974, which permit fees only for duplication. DON activities are reminded that this category of requester may also be eligible for a waiver or reduction of fees if disclosure of the information is in the public interest.

§ 701.43Fee declarations.

Requesters should submit a fee declaration appropriate for the categories in paragraphs (a) through (c) of this section, if fees are expected to exceed the minimum fee threshold of $15.00.

(a) Commercial. Requesters should indicate a willingness to pay all search, review and duplication costs.

(b) Educational or noncommercial scientific institution or news media. Requesters should indicate a willingness to pay duplication charges in excess of 100 pages if more than 100 pages of records are desired.

(c) All others. Requesters should indicate a willingness to pay assessable search and duplication costs if more than 2 hours of search effort or 100 pages of records are desired.

(d) If the conditions in paragraphs (a) through (c) are not met, then the request need not be processed and the requester shall be so informed.

§ 701.44Restrictions.

(a) No fees may be charged by any DON activity if the costs of routine collection and processing of the fee are likely to equal or exceed the amount of the fee. With the exception of requesters seeking documents for a commercial use, activities shall provide the first 2 hours of search time, and the first 100 pages of duplication without charge. For example, for a request (other than one from a commercial requester) that involved 2 hours and 10 minutes of search time, and resulted in 105 pages of documents, an activity would determine the cost of only 10 minutes of search time, and only five pages of reproduction. If this processing cost was equal to, or less than, the cost to the activity for billing the requester and processing the fee collected, no charges would result.

(b) Requesters receiving the first 2 hours of search and the first 100 pages of duplication without charge are entitled to such only once per request. Consequently, if a DON activity, after completing its portion of a request, finds it necessary to refer the request to a subordinate office, another DON activity, or another Federal agency to action their portion of the request, the referring activity shall inform the recipient of the referral of the expended amount of search time and duplication cost to date.

(c) The elements to be considered in determining the “cost of collecting a fee” are the administrative costs to the DON activity of receiving and recording a remittance, and processing the fee for deposit in the Department of Treasury's special account. The cost to the Department of Treasury to handle such remittance is negligible and shall not be considered in activity determinations.

(d) For the purposes of the restrictions in this section, the word “pages” refers to paper copies of a standard size, which will normally be “81/2×11” or “11×14.” Thus, requesters would not be entitled to 100 microfiche or 100 computer disks, for example. A microfiche containing the equivalent of 100 pages or 100 pages of computer printout however, might meet the terms of the restriction.

(e) In the case of computer searches, the first 2 free hours will be determined against the salary scale of the individual operating the computer for the purposes of the search. As an example, when the direct costs of the computer central processing unit, input-output devices, and memory capacity equal $24.00 (2 hours of equivalent search at the clerical level), amounts of computer costs in excess of that amount are chargeable as computer search time. In the event the direct operating cost of the hardware configuration cannot be determined, computer search shall be based on the salary scale of the operator executing the computer search.

§ 701.45Fee assessment.

(a) Fees may not be used to discourage requesters, and to this end, FOIA fees are limited to standard charges for direct document search, review (in the case of commercial requesters) and duplication.

(b) In order to be as responsive as possible to FOIA requests while minimizing unwarranted costs to the taxpayer, DON activities shall analyze each request to determine the category of the requester. If the activity's determination regarding the category of the requester is different than that claimed by the requester, the activity shall:

(1) Notify the requester to provide additional justification to warrant the category claimed, and that a search for responsive records will not be initiated until agreement has been attained relative to the category of the requester. Absent further category justification from the requester, and within a reasonable period of time (i.e., 30 calendar days), the DON activity shall render a final category determination, and notify the requester of such determination, to include normal administrative appeal rights of the determination.

(2) Advise the requester that, notwithstanding any appeal, a search for responsive records will not be initiated until the requester indicates a willingness to pay assessable costs appropriate for the category determined by the activity.

(c) Estimate of fees. DON activities must be prepared to provide an estimate of assessable fees if desired by the requester. While it is recognized that search situations will vary among activities, and that an estimate is often difficult to obtain prior to an actual search, requesters who desire estimates are entitled to such before committing to a willingness to pay. Should the activity's actual costs exceed the amount of the estimate or the amount agreed to by the requester, the amount in excess of the estimate or the requester's agreed amount shall not be charged without the requester's agreement.

(d) Advance payment of fees. DON activities may not require advance payment of any fee (i.e., before work is commenced or continued on a request) unless the requester has failed to pay fees in a timely fashion (i.e., 30 calendar days from the date of the assessed billing in writing), or the activity has determined that the fee will exceed $250.00.

(e) When a DON activity estimates or determines that allowable charges that a requester may be required to pay are likely to exceed $250.00, the activity shall notify the requester of the likely cost and obtain satisfactory assurance of full payment where the requester has a history of prompt payments, or require an advance payment of an amount up to the full estimated charges in the case of requesters with no payment history.

(f) Where a requester has previously failed to pay a fee charged in a timely fashion (i.e., within 30 calendar days from the date of the billing), the DON activity may require the requester to pay the full amount owed, plus any applicable interest, or demonstrate that he or she has paid the fee, and to make an advance payment of the full amount of the estimated fee before the DON activity begins to process a new or pending request from the requester. Interest will be at the rate prescribed by 31 U.S.C. 3737 and confirmed with respective finance and accounting offices.

(g) After all the work is completed on a request, and the documents are ready for release, DON activities may require payment before forwarding the documents, particularly for those requesters who have no payment history, or for those requesters who have failed to previously pay a fee in a timely fashion (i.e., within 30 calendar days from the date of the billing).

(h) DON activities may charge for time spent searching for records, even if that search fails to locate records responsive to the request. DON activities may also charge search and review (in the case of commercial requesters) time if records located are determined to be exempt from disclosure. In practice, if the DON activity estimates that search charges are likely to exceed $25.00, it shall notify the requester of the estimated amount of fees, unless the requester has indicated in advance his or her willingness to pay fees as high as those anticipated. Such a notice shall offer the requester the opportunity to confer with activity personnel with the object of reformulating the request to meet his or her needs at a lower cost.

§ 701.46Aggregating requests.

Except for requests that are for a commercial use, a DON activity may not charge for the first 2 hours of search time or for the first 100 pages of reproduction. However, a requester may not file multiple requests at the same time, each seeking portions of a document or documents, solely in order to avoid payment of fees. When an activity reasonably believes that a requester or, on rare occasions, a group of requesters acting in concert, is attempting to break a request down into a series of requests for the purpose of avoiding the assessment of fees, the activity may aggregate any such requests and charge accordingly. One element to be considered in determining whether a belief would be reasonable is the time period in which the requests have occurred. For example, it would be reasonable to presume that multiple requests of this type made within a 30-day period had been made to avoid fees. For requests made over a longer period however, such a presumption becomes harder to sustain and activities should have a solid basis for determining that aggregation is warranted in such cases. DON activities are cautioned that before aggregating requests from more than one requester, they must have a concrete basis on which to conclude that the requesters are acting in concert and are acting specifically to avoid payment of fees. In no case may an activity aggregate multiple requests on unrelated subjects.

§ 701.47FOIA fees must be addressed in response letters.

DON activities shall ensure that requesters receive a complete breakout of all fees which are charged and apprised of the “Category” in which they have been placed. For example: “We are treating you as an ’All Other Requester.’ As such, you are entitled to 2 free hours of search and 100 pages of reproduction, prior to any fees being assessed. We have expended an additional 2 hours of search at $25.00 per hour and an additional 100 pages of reproduction, for a total fee of $65.00.”

§ 701.48Fee waivers.

Documents shall be furnished without charge, or at a charge reduced below fees assessed to the categories of requesters, when the DON activity determines that waiver or reduction of the fees is in the public interest because furnishing the information is likely to contribute significantly to public understanding of the operations or activities of the DON/DoD and is not primarily in the commercial interest of the requester. When assessable costs for a FOIA request total $15.00 or less, fees shall be waived automatically for all requesters, regardless of category. Decisions to waive or reduce fees that exceed the automatic waiver threshold shall be made on a case-by-case basis, consistent with the following factors:

(a) Disclosure of the information “is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the Government.”

(b) The subject of the request. DON activities should analyze whether the subject matter of the request involves issues that will significantly contribute to the public understanding of the operations or activities of the DON/DoD. Requests for records in the possession of the DON which were originated by non-government organizations and are sought for their intrinsic content, rather than informative value, will likely not contribute to public understanding of the operations or activities of the DON/DoD. An example of such records might be press clippings, magazine articles, or records forwarding a particular opinion or concern from a member of the public regarding a DON/DoD activity. Similarly, disclosures of records of considerable age may or may not bear directly on the current activities of the DON/DoD, however, the age of a particular record shall not be the sole criteria for denying relative significance under this factor. It is possible to envisage an informative issue concerning the current activities of the DON/DoD, based upon historical documentation. Requests of this nature must be closely reviewed consistent with the requester's stated purpose for desiring the records and the potential for public understanding of the operations and activities of the DON/DoD.

(c) The informative value of the information to be disclosed. This factor requires a close analysis of the substantive contents of a record, or portion of the record, to determine whether disclosure is meaningful, and shall inform the public on the operations or activities of the DON. While the subject of a request may contain information that concerns operations or activities of the DON, it may not always hold great potential for contributing to a meaningful understanding of these operations or activities. An example of such would be a previously released record that has been heavily redacted, the balance of which may contain only random words, fragmented sentences, or paragraph headings. A determination as to whether a record in this situation will contribute to the public understanding of the operations or activities of the DON must be approached with caution and carefully weighed against the arguments offered by the requester. Another example is information already known to be in the public domain. Disclosure of duplicative or nearly identical information already existing in the public domain may add no meaningful new information concerning the operations and activities of the DON.

(d) The contribution to an understanding of the subject by the general public likely to result from disclosure. The key element in determining the applicability of this factor is whether disclosure will inform, or have the potential to inform, the public rather than simply the individual requester or small segment of interested persons. The identity of the requester is essential in this situation in order to determine whether such requester has the capability and intention to disseminate the information to the public. Mere assertions of plans to author a book, researching a particular subject, doing doctoral dissertation work, or indigence are insufficient without demonstrating the capacity to further disclose the information in a manner that will be informative to the general public. Requesters should be asked to describe their qualifications, the nature of their research, the purpose of the requested information, and their intended means of dissemination to the public.

(e) The significance of the contribution to public understanding. In applying this factor, DON activities must differentiate the relative significance or impact of the disclosure against the current level of public knowledge, or understanding which exists before the disclosure. In other words, will disclosure on a current subject of wide public interest be unique in contributing previously unknown facts, thereby enhancing public knowledge, or will it basically duplicate what is already known by the general public? A decision regarding significance requires objective judgment, rather than subjective determination, and must be applied carefully to determine whether disclosure will likely lead to a significant public understanding of the issue. DON activities shall not make value judgments as to whether the information is important enough to be made public.

(f) Disclosure of the information “is not primarily in the commercial interest of the requester.”

(1) The existence and magnitude of a commercial interest. If the request is determined to be of a commercial interest, DON activities should address the magnitude of that interest to determine if the requester's commercial interest is primary, as opposed to any secondary personal or non-commercial interest. In addition to profit-making organizations, individual persons or other organizations may have a commercial interest in obtaining certain records. Where it is difficult to determine whether the requester is of a commercial nature, DON activities may draw inference from the requester's identity and circumstances of the request. Activities are reminded that in order to apply the commercial standards of the FOIA, the requester's commercial benefit must clearly override any personal or non-profit interest.

(2) The primary interest in disclosure. Once a requester's commercial interest has been determined, DON activities should then determine if the disclosure would be primarily in that interest. This requires a balancing test between the commercial interest of the request against any public benefit to be derived as a result of that disclosure. Where the public interest is served above and beyond that of the requester's commercial interest, a waiver or reduction of fees would be appropriate. Conversely, even if a significant public interest exists, and the relative commercial interest of the requester is determined to be greater than the public interest, then a waiver or reduction of fees would be inappropriate. As examples, news media organizations have a commercial interest as business organizations; however, their inherent role of disseminating news to the general public can ordinarily be presumed to be of a primary interest. Therefore, any commercial interest becomes secondary to the primary interest in serving the public. Similarly, scholars writing books or engaged in other forms of academic research may recognize a commercial benefit, either directly, or indirectly (through the institution they represent); however, normally such pursuits are primarily undertaken for educational purposes, and the application of a fee charge would be inappropriate. Conversely, data brokers or others who merely compile government information for marketing can normally be presumed to have an interest primarily of a commercial nature.

(g) The factors and examples used in this section are not all inclusive. Each fee decision must be considered on a case-by-case basis and upon the merits of the information provided in each request. When the element of doubt as to whether to charge or waive the fee cannot be clearly resolved, DON activities should rule in favor of the requester.

(h) The following additional circumstances describe situations where waiver or reduction of fees are most likely to be warranted:

(1) A record is voluntarily created to prevent an otherwise burdensome effort to provide voluminous amounts of available records, including additional information not requested.

(2) A previous denial of records is reversed in total, or in part, and the assessable costs are not substantial (e.g. $15.00-$30.00).

§ 701.49Payment of fees.

(a) Normally, fees will be collected at the time of providing the documents to the requester when the requester specifically states that the costs involved shall be acceptable or acceptable up to a specified limit that covers the anticipated costs, and the fees do not exceed $250.00.

(b) However, after all work is completed on a request, and the documents are ready for release, DON activities may request payment before forwarding the documents, particularly for those requesters who have no payment history, or for those requesters who have failed previously to pay a fee in a timely fashion (i.e., within 30 calendar days from the date of the billing).

(c) When a DON activity estimates or determines that allowable charges that a requester may be required to pay are likely to exceed $250.00, the activity shall notify the requester of the likely cost and obtain satisfactory assurance of full payment where the requester has a history of prompt payments, or require an advance payment of an amount up to the full estimated charges in the case of requesters with no history of payment.

(d) Advance payment of a fee is also applicable when a requester has previously failed to pay fees in a timely fashion (i.e., 30 calendar days) after being assessed in writing by the activity. Further, where a requester has previously failed to pay a fee charged in a timely fashion (i.e., within 30 calendar days from the date of the billing), the DON activity may require the requester to pay the full amount owed, plus any applicable interest, or demonstrate that he or she has paid the fee, and to make an advance payment of the full amount of the estimated fee before the activity begins to process a new or pending request from the requester. Interest will be at the rate prescribed in 31 U.S.C. 3717 and confirmed with respective finance and accounting offices.

§ 701.50Effect of the Debt Collection Act of 1982.

The Debt Collection Act of 1982 (Pub. L. 97-365) provides for a minimum annual rate of interest to be charged on overdue debts owed the Federal Government. DON activities may levy this interest penalty for any fees that remain outstanding 30 calendar days from the date of billing (the first demand notice) to the requester of the amount owed. The interest rate shall be as prescribed in 31 U.S.C. 3717. DON activities should verify the current interest rate with respective finance and accounting offices. After one demand letter has been sent and 30 calendar days have lapsed with no payment, DON activities may submit the debt to respective finance and accounting offices for collection.

§ 701.51Refunds.

In the event that a DON activity discovers that it has overcharged a requester or a requester has overpaid, the DON activity shall promptly refund the charge to the requester by reimbursement methods that are agreeable to the requester and the activity.

§ 701.52Computation of fees.

(a) It is imperative that DON activities compute all fees to ensure accurate reporting in the Annual FOIA Report, but ensure that only applicable fees be charged to the requester. For example, although we calculate correspondence and preparation costs, these fees are not recoupable from the requester.

(b) DD 2086, Record of Freedom of Information (FOI) Processing Cost, should be filled out accurately to reflect all processing costs, as requesters may solicit a copy of that document to ensure accurate computation of fees. Costs shall be computed on time actually spent. Neither time-based nor dollar-based minimum charges for search, review and duplication are authorized.

§ 701.53FOIA fee schedule.

The following fee schedule shall be used to compute the search, review (in the case of commercial requesters) and duplication costs associated with processing a given FOIA request. The appropriate fee category of the requester shall be applied before computing fees.

(b) Computer search. Fee assessments for computer search consist of two parts; individual time (hereafter referred to as human time) and machine time.

(1) Human time. Human time is all the time spent by humans performing the necessary tasks to prepare the job for a machine to execute the run command. If execution of a run requires monitoring by a human, that human time may be also assessed as computer search. The terms “programmer/operator” shall not be limited to the traditional programmers or operators. Rather, the terms shall be interpreted in their broadest sense to incorporate any human involved in performing the computer job (e.g. technician, administrative support, operator, programmer, database administrator, or action officer).

(2) Machine time. Machine time involves only direct costs of the central processing unit (CPU), input/output devices, and memory capacity used in the actual computer configuration. Only this CPU rate shall be charged. No other machine-related costs shall be charged. In situations where the capability does not exist to calculate CPU time, no machine costs can be passed on to the requester. When CPU calculations are not available, only human time costs shall be assessed to requesters. Should DON activities lease computers, the services charged by the lessor shall not be passed to the requester under the FOIA.

(c) Duplication.

TypeCost per pagePre-Printed material $.02Office copy .15Microfiche .25Computer copies (tapes, discs or printouts) Actual cost of duplicating the tape, disc or printout (includes operator's time and cost of the medium).

(e) Audiovisual documentary materials. Search costs are computed as for any other record. Duplication cost is the actual direct cost of reproducing the material, including the wage of the person doing the work. Audiovisual materials provided to a requester need not be in reproducible format or quality.

(f) Other records. Direct search and duplication cost for any record not described in this section shall be computed in the manner described for audiovisual documentary material.

(g) Costs for special services. Complying with requests for special services is at the discretion of the DON activity. Neither the FOIA nor its fee structure cover these kinds of services. Therefore, DON activities may recover the costs of special services requested by the requester after agreement has been obtained in writing from the requester to pay for such fees as certifying that records are true copies, sending records by special methods such as express mail, etc.

§ 701.54Collection of fees and fee rates for technical data.

(a) Technical data, other than technical data that discloses critical technology with military or space application, if required to be released under the FOIA, shall be released after the person requesting such technical data pays all reasonable costs attributed to search, duplication and review of the records to be released. Technical data, as used in this section, means recorded information, regardless of the form or method of the recording of a scientific or technical nature (including computer software documentation). This term does not include computer software, or data incidental to contract administration, such as financial and/or management information.

(b) DON activities shall retain the amounts received by such a release, and it shall be merged with and available for the same purpose and the same time period as the appropriation from which the costs were incurred in complying with request. All reasonable costs as used in this sense are the full costs to the Federal Government of rendering the service, or fair market value of the service, whichever is higher. Fair market value shall be determined in accordance with commercial rates in the local geographical area. In the absence of a known market value, charges shall be based on recovery of full costs to the Federal Government. The full costs shall include all direct and indirect costs to conduct the search and to duplicate the records responsive to the request. This cost is to be differentiated from the direct costs allowable under information released under FOIA.

(c) Waiver. DON activities shall waive the payment of costs required in paragraph (a) of this section which are greater than the costs that would be required for release of this same information under the FOIA if:

(1) The request is made by a citizen of the United States or a United States corporation and such citizen or corporation certifies that the technical data requested is required to enable it to submit an offer or determine whether it is capable of submitting an offer to provide the product to which the technical data relates to the United States or a contractor with the United States. However, DON activities may require the citizen or corporation to pay a deposit in an amount equal to not more than the cost of complying with the request, which will be refunded upon submission of an offer by the citizen or corporation;

(2) The release of technical data is requested in order to comply with the terms of an international agreement; or,

(3) The DON activity determines in accordance with § 701.48 that such a waiver is in the interest of the United States.

(d) Fee rates. (1) Manual search.

TypeGradeHourly rateClerical E9/GS8 and below $13.25Clerical (Minimum Charge) 8.30Professional 01 to 06/GS9 to GS15 (**)Executive 07/GS16/ES-1 and above (**)** Rate to be established at actual hourly rate prior to search. A minimum charge will be established at 1/2 Minimum Charge)

(2) Computer search is based on the total cost of the central processing unit, input-output devices, and memory capacity of the actual computer configuration. The wage (based upon the scale for manual search) for the computer operator and/or programmer determining how to conduct, and subsequently executing the search will be recorded as part of the computer search.

TypeGradeHourly rateClerical E9/GS8 and below $13.25Clerical Minimum Charge E9/GS8 and below 8.30Professional 01 to 06/GS9 to GS15 (**)Executive 07/GS16/ES1 or higher (**)** Rate to be established at actual hourly rate prior to search. (A minimum charge will be established at 1/2 Minimum Charge)

(5) Other technical data records. Charges for any additional services not specifically provided in paragraph (d) of this section, consistent with Volume 11A of DoD 7000.14-R (NOTAL) shall be made by DON activities at the following rates:

(a) Payments for FOIA charges, less fees assessed for technical data or by a Working Capital Fund or a Non-Appropriated Fund (NAF) activity, shall be made payable to the U.S. Treasurer and deposited in Receipt Account Number 172419.1203.

(b) Payments for fees assessed for technical data shall be made payable to the DON activity that incurred the costs and will be deposited directly into the accounting line item from which the costs were incurred.

(c) Payments for fees assessed by Working Capital Fund or Non-Appropriated Fund (NAF) activities shall be made payable to the DON activity and deposited directly into their account.

Subpart D—FOIA Exemptions§ 701.56Background.

The FOIA is a disclosure statute whose goal is an informed citizenry. Accordingly, records are considered to be releasable, unless they contain information that qualifies for withholding under one or more of the nine FOIA exemptions. The exemptions are identified as 5 U.S.C. 552 (b)(1) through (b)(9).

§ 701.57Ground rules.

(a) Identity of requester. In applying exemptions, the identity of the requester and the purpose for which the record is sought are irrelevant with the exception that an exemption may not be invoked where the particular interest to be protected is the requester's interest. However, if the subject of the record is the requester for the record and the record is contained in a Privacy Act system of records, it may only be denied to the requester if withholding is both authorized in systems notice and by a FOIA exemption.

(b) Reasonably segregable. Even though a document may contain information which qualifies for withholding under one or more FOIA exemptions, FOIA requires that all “reasonably segregable” information be provided to the requester, unless the segregated information would have no meaning. In other words, redaction is not required when it would reduce the balance of the text to unintelligible gibberish.

(c) Discretionary release. A discretionary release of a record to one requester shall prevent the withholding of the same record under a FOIA exemption if the record is subsequently requested by someone else. However, a FOIA exemption may be invoked to withhold information that is similar or related that has been the subject of a discretionary release.

(d) Initial Denial Authority (IDA) actions. The decision to withhold information in whole or in part based on one or more of the FOIA exemptions requires the signature of an IDA. See listing of IDAs in § 701.4.

§ 701.58In-depth analysis of FOIA exemptions.

An in-depth analysis of the FOIA exemptions is addressed in the DOJ's annual publication, “Freedom of Information Act Guide & Privacy Act Overview.” A copy is available on the DOJ's FOIA website (see Navy FOIA website at http://www.ogc.secnav.hq.navy.mil/foia/index.html for easy access).

§ 701.59A brief explanation of the meaning and scope of the nine FOIA exemptions.

(a) 5 U.S.C. 552 (b)(1): Those properly and currently classified in the interest of national defense or foreign policy, as specifically authorized under the criteria established by Executive Order and implemented by regulations.

(1) Although material is not classified at the time of the FOIA request, a classification review may be undertaken to determine whether the information should be classified based on the Executive Order on classification (i.e., Executive Order 12958) and/or a security classification guide. The procedures for reclassification are addressed in the Executive Order.

(2) If the information qualifies as exemption (b)(1) information, there is no discretion regarding its release. In addition, this exemption shall be invoked when the following situations are apparent:

(i) Glomar response: The fact of the existence or nonexistence of a record would itself reveal classified information. In this situation, DON activities shall neither confirm nor deny the existence or nonexistence of the record being requested. A “refusal to confirm or deny” response must be used consistently, not only when a record exists, but also when a record does not exist. Otherwise, the pattern of using a “no record” response when a record does not exist, and a “refusal to confirm or deny” when a record does exist will itself disclose national security information.

(ii) Compilation: Compilations of items of information that are individually unclassified may be classified if the compiled information reveals additional association or relationship that meets the standard for classification under an existing executive order for classification and is not otherwise revealed in the individual items of information.

(b) 5 U.S.C. 552 (b)(2): Those related solely to the internal personnel rules and practices of the DON and its activities. This exemption is entirely discretionary and has two profiles, high (b)(2) and low (b)(2):

(1) High (b)(2) are records containing or constituting statutes, rules, regulations, orders, manuals, directives, instructions, and security classification guides, the release of which would allow circumvention of these records thereby substantially hindering the effective performance of a significant function of the DON. For example:

(i) Those operating rules, guidelines, and manuals for DON investigators, inspectors, auditors, or examiners that must remain privileged in order for the DON activity fulfill a legal requirement;

(ii) Personnel and other administrative matters, such as examination questions and answers used in training courses or in the determination of the qualifications of candidates for employment, entrance on duty, advancement, or promotion;

(iii) Computer software, the release of which would allow circumvention of a statute or DON rules, regulations, orders, manuals, directives, or instructions. In this situation, the use of the software must be closely examined to ensure a circumvention possibility exists.

(2) Discussion of low (b)(2) is provided for information only, as DON activities may not invoke the low (b)(2). Low (b)(2) records are those matters which are trivial and housekeeping in nature for which there is no legitimate public interest or benefit to be gained by release, and it would constitute an administrative burden to process the request in order to disclose the records. Examples include rules of personnel's use of parking facilities or regulation of lunch hours, statements of policy as to sick leave, and administrative data such as file numbers, mail routing stamps, initials, data processing notations, brief references to previous communications, and other like administrative markings.

(c) 5 U.S.C. 552 (b)(3): Those concerning matters that a statute specifically exempts from disclosure by terms that permit no discretion on the issue, or in accordance with criteria established by that statute for withholding or referring to particular types of matters to be withheld. A few examples of (b)(3) statutes are:

(d) 5 U.S.C. 552 (b)(4): Those containing trade secrets or commercial or financial information that a DON activity receives from a person or organization outside the Government with the understanding that the information or record will be retained on a privileged or confidential basis in accordance with the customary handling of such records. Records within the exemption must contain trade secrets, or commercial or financial records, the disclosure of which is likely to cause substantial harm to the competitive position of the source providing the information; impair the Government's ability to obtain necessary information in the future; or impair some other legitimate Government interest. Commercial or financial information submitted on a voluntary basis, absent any exercised authority prescribing criteria for submission is protected without any requirement to show competitive harm. If the information qualifies as exemption (b)(4) information, there is no discretion in its release. Examples include:

(1) Commercial or financial information received in confidence in connection with loans, bids, contracts, or proposals set forth in or incorporated by reference in a contract entered into between the DON activity and the offeror that submitted the proposal, as well as other information received in confidence or privileged, such as trade secrets, inventions, discoveries, or other proprietary data. Additionally, when the provisions of 10 U.S.C. 2305(g) and 41 U.S.C. 423 are met, certain proprietary and source selection information may be withheld under exemption (b)(3).

(2) Statistical data and commercial or financial information concerning contract performance, income, profits, losses, and expenditures, if offered and received in confidence from a contractor or potential contractor.

(3) Personal statements given in the course of inspections, investigations, or audits, when such statements are received in confidence from the individual and retained in confidence because they reveal trade secrets or commercial or financial information normally considered confidential or privileged.

(4) Financial data provided in confidence by private employers in connection with locality wage surveys that are used to fix and adjust pay schedules applicable to the prevailing wage rate of employees within the DON.

(5) Scientific and manufacturing processes or developments concerning technical or scientific data or other information submitted with an application for a research grant, or with a report while research is in progress.

(6) Technical or scientific data developed by a contractor or subcontractor exclusively at private expense, and technical or scientific data developed in part with Federal funds and in part at private expense, wherein the contractor or subcontractor has retained legitimate proprietary interests in such data in accordance with 10 U.S.C. 2320-2321 and DoD Federal Acquisition Regulation Supplement (DFARS), chapter 2 of 48 CFR, subparts 227.71 and 227.72. Technical data developed exclusively with Federal funds may be withheld under Exemption (b)(3) if it meets the criteria of 10 U.S.C. 130 and DoD Directive 5230.25 of 6 November 1984.

(7) Computer software which is copyrighted under the Copyright Act of 1976 (17 U.S.C. 106), the disclosure of which would have an adverse impact on the potential market value of a copyrighted work.

(8) Proprietary information submitted strictly on a voluntary basis, absent any exercised authority prescribing criteria for submission. Examples of exercised authorities prescribing criteria for submission are statutes, Executive Orders, regulations, invitations for bids, requests for proposals, and contracts. Submission of information under these authorities is not voluntary.

(e) 5 U.S.C. 552(b)(5): Those containing information considered privileged in litigation, primarily under the deliberative process privilege. For example: internal advice, recommendations, and subjective evaluations, as contrasted with factual matters, that are reflected in deliberative records pertaining to the decision-making process of an agency, whether within or among agencies or within or among DON activities. In order to meet the test of this exemption, the record must be both deliberative in nature, as well as part of a decision-making process. Merely being an internal record is insufficient basis for withholding under this exemption. Also potentially exempted are records pertaining to the attorney-client privilege and the attorney work-product privilege. This exemption is entirely discretionary. Examples of the deliberative process include:

(2) Advice, suggestions, or evaluations prepared on behalf of the DON by individual consultants or by boards, committees, councils, groups, panels, conferences, commissions, task forces, or other similar groups that are formed for the purpose of obtaining advice and recommendations.

(3) Those non-factual portions of evaluations by DON personnel of contractors and their products.

(4) Information of a speculative, tentative, or evaluative nature or such matters as proposed plans to procure, lease or otherwise acquire and dispose of materials, real estate, facilities or functions, when such information would provide undue or unfair competitive advantage to private personal interests or would impede legitimate government functions.

(5) Trade secret or other confidential research development, or commercial information owned by the Government, where premature release is likely to affect the Government's negotiating position or other commercial interest.

(6) Those portions of official reports of inspection, reports of the Inspector Generals, audits, investigations, or surveys pertaining to safety, security, or the internal management, administration, or operation of one or more DON activities, when these records have traditionally been treated by the courts as privileged against disclosure in litigation.

(7) Planning, programming, and budgetary information that is involved in the defense planning and resource allocation process.

(8) If any such intra- or inter-agency record or reasonably segregable portion of such record hypothetically would be made available routinely through the discovery process in the course of litigation with the agency, then it should not be withheld under the FOIA. If, however, the information hypothetically would not be released at all, or would only be released in a particular case during civil discovery where a party's particularized showing of need might override a privilege, then the record may be withheld. Discovery is the formal process by which litigants obtain information from each other for use in the litigation. Consult with legal counsel to determine whether exemption 5 material would be routinely made available through the discovery process.

(9) Intra- or inter-agency memoranda or letters that are factual, or those reasonably segregable portions that are factual, are routinely made available through discovery, and shall be made available to a requester, unless the factual material is otherwise exempt from release, inextricably intertwined with the exempt information, so fragmented as to be uninformative, or so redundant of information already available to the requester as to provide no new substantive information.

(10) A direction or order from a superior to a subordinate, though contained in an internal communication, generally cannot be withheld from a requester if it constitutes policy guidance or a decision, as distinguished from a discussion of preliminary matters or a request for information or advice that would compromise the decision-making process.

(11) An internal communication concerning a decision that subsequently has been made a matter of public record must be made available to a requester when the rationale for the decision is expressly adopted or incorporated by reference in the record containing the decision.

(f) 5 U.S.C. 552(b)(6): Information in personnel and medical files, as well as similar personal information in other files, that, if disclosed to a requester, other than the person about whom the information is about, would result in a clearly unwarranted invasion of personal privacy. Release of information about an individual contained in a Privacy Act System of records that would constitute a clearly unwarranted invasion of privacy is prohibited, and could subject the releaser to civil and criminal penalties. If the information qualifies as exemption (b)(6) information, there is no discretion in its release. Examples of other files containing personal information similar to that contained in personnel and medical files include:

(1) Those compiled to evaluate or adjudicate the suitability of candidates for civilian employment or membership in the Armed Forces, and the eligibility of individuals (civilian, military, or contractor employees) for security clearances, or for access to particularly sensitive classified information.

(2) Files containing reports, records, and other material pertaining to personnel matters in which administrative action, including disciplinary action, may be taken.

(3) Home addresses, including private e-mail addresses, are normally not releasable without the consent of the individuals concerned. This includes lists of home addressees and military quarters’ addressees without the occupant's name. Additionally, the names and duty addresses (postal and/or e-mail) of DON/DoD military and civilian personnel who are assigned to units that are sensitive, routinely deployable, or stationed in foreign territories can constitute a clearly unwarranted invasion of personal privacy.

(4) Privacy interest. A privacy interest may exist in personal information even though the information has been disclosed at some place and time. If personal information is not freely available from sources other than the Federal Government, a privacy interest exists in its nondisclosure. The fact that the Federal Government expended funds to prepare, index and maintain records on personal information, and the fact that a requester invokes FOIA to obtain these records indicates the information is not freely available.

(5) Names and duty addresses (postal and/or e-mail) published in telephone directories, organizational charts, rosters and similar materials for personnel assigned to units that are sensitive, routinely deployable, or stationed in foreign territories are withholdable under this exemption.

(6) This exemption shall not be used in an attempt to protect the privacy of a deceased person, but it may be used to protect the privacy of the deceased person's family if disclosure would rekindle grief, anguish, pain, embarrassment, or even disruption of peace of mind of surviving family members. In such situations, balance the surviving family members’ privacy against the public's right to know to determine if disclosure is in the public interest. Additionally, the deceased's social security number should be withheld since it is used by the next of kin to receive benefits. Disclosures may be made to the immediate next of kin as defined in DoD Directive 5154.24 of 28 October 1996 (NOTAL).

(7) A clearly unwarranted invasion of the privacy of third parties identified in a personnel, medical or similar record constitutes a basis for deleting those reasonably segregable portions of that record. When withholding third party personal information from the subject of the record and the record is contained in a Privacy Act system of records, consult with legal counsel.

(8) This exemption also applies when the fact of the existence or nonexistence of a responsive record would itself reveal personally private information, and the public interest in disclosure is not sufficient to outweigh the privacy interest. In this situation, DON activities shall neither confirm nor deny the existence or nonexistence of the record being requested. This is a Glomar response, and exemption (b)(6) must be cited in the response. Additionally, in order to insure personal privacy is not violated during referrals, DON activities shall coordinate with other DON activities or Federal agencies before referring a record that is exempt under the Glomar concept.

(i) A “refusal to confirm or deny” response must be used consistently, not only when a record exists, but also when a record does not exist. Otherwise, the pattern of using a “no records” response when a record does not exist and a “refusal to confirm or deny” when a record does exist will itself disclose personally private information.

(ii) Refusal to confirm or deny should not be used when the person whose personal privacy is in jeopardy has provided the requester a waiver of his or her privacy rights; the person initiated or directly participated in an investigation that led to the creation of an agency record seeks access to that record; or the person whose personal privacy is in jeopardy is deceased, the Agency is aware of that fact, and disclosure would not invade the privacy of the deceased's family.

(g) 5 U.S.C. 552(b)(7). Records or information compiled for law enforcement purposes; i.e., civil, criminal, or military law, including the implementation of Executive Orders or regulations issued under law. This exemption may be invoked to prevent disclosure of documents not originally created for, but later gathered for law enforcement purposes. With the exception of (b)(7)(C) and (b)(7)(F), this exemption is discretionary. This exemption applies, however, only to the extent that production of such law enforcement records or information could result in the following:

(1) 5 U.S.C. 552(b)(7)(A): Could reasonably be expected to interfere with enforcement proceedings.

(2) 5 U.S.C. 552(b)(7)(B): Would deprive a person of the right to a fair trial or to an impartial adjudication.

(3) 5 U.S.C. 552(b)(7)(C): Could reasonably be expected to constitute an unwarranted invasion of personal privacy of a living person, including surviving family members of an individual identified in such a record.

(i) This exemption also applies when the fact of the existence or nonexistence of a responsive record would itself reveal personally private information, and the public interest in disclosure is not sufficient to outweigh the privacy interest. In this situation, Components shall neither confirm nor deny the existence or nonexistence of the record being requested. This is a Glomar response, and exemption (b)(7)(C) must be cited in the response. Additionally, in order to insure personal privacy is not violated during referrals, DON activities shall coordinate with other DON/DoD activities or Federal Agencies before referring a record that is exempt under the Glomar concept. A “refusal to confirm or deny” response must be used consistently, not only when a record exists, but also when a record does not exist. Otherwise, the pattern of using a “no records” response when a record does not exist and a “refusal to confirm or deny” when a record does exist will itself disclose personally private information.

(ii) Refusal to confirm or deny should not be used when the person whose personal privacy is in jeopardy has provided the requester with a waiver of his or her privacy rights; or the person whose personal privacy is in jeopardy is deceased, and the activity is aware of that fact.

(4) 5 U.S.C. 552(b)(7)(D): Could reasonably be expected to disclose the identity of a confidential source, including a source within the DON; a State, local, or foreign agency or authority; or any private institution that furnishes the information on a confidential basis; and could disclose information furnished from a confidential source and obtained by a criminal law enforcement authority in a criminal investigation or by an agency conducting a lawful national security intelligence investigation.

(5) 5 U.S.C. 552(b)(7)(E): Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.

(6) 5 U.S.C. 552(b)(7)(F): Could reasonably be expected to endanger the life or physical safety of any individual.

(7) Some examples of exemption 7 are: Statements of witnesses and other material developed during the course of the investigation and all materials prepared in connection with related Government litigation or adjudicative proceedings; the identity of firms or individuals being investigated for alleged irregularities involving contracting with the DoD when no indictment has been obtained nor any civil action filed against them by the United States; information obtained in confidence, expressed or implied, in the course of a criminal investigation by a criminal law enforcement agency or office within a DON activity or a lawful national security intelligence investigation conducted by an authorized agency or office within the DON; national security intelligence investigations include background security investigations and those investigations conducted for the purpose of obtaining affirmative or counterintelligence information.

(8) The right of individual litigants to investigative records currently available by law (such as, the Jencks Act, 18 U.S.C. 3500), is not diminished.

(9) Exclusions. Excluded from the exemption in paragraph (g)(8) are the following two situations applicable to the DON:

(i) Whenever a request is made that involves access to records or information compiled for law enforcement purposes, and the investigation or proceeding involves a possible violation of criminal law where there is reason to believe that the subject of the investigation or proceeding is unaware of its pendency, and the disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings, DON activities may, during only such times as that circumstance continues, treat the records or information as not subject to the FOIA. In such situation, the response to the requester will state that no records were found.

(ii) Whenever informant records maintained by a criminal law enforcement organization within a DON activities under the informant's name or personal identifier are requested by a third party using the informant's name or personal identifier, the DON activity may treat the records as not subject to the FOIA, unless the informant's status as an informant has been officially confirmed. If it is determined that the records are not subject to 5 U.S.C. 552(b)(7), the response to the requester will state that no records were found.

(iii) DON activities considering invoking an exclusion should first consult with the DOJ's Office of Information and Privacy.

(h) 5 U.S.C. 552(b)(8): Those contained in or related to examination, operation or condition reports prepared by, on behalf of, or for the use of any agency responsible for the regulation or supervision of financial institutions.

(a) Publishing the following Department of the Navy documents in the Federal Register:

(1) Certain classes of regulatory, organizational policy, substantive, and procedural documents required to be published for the guidance of the public;

(2) Certain classes of proposed regulatory documents required to be published for public comment prior to issuance; and

(3) Certain public notices required by law or regulation to be published;

(b) Making available, for public inspection and copying, certain classes of documents having precedential effect on decisions concerning members of the public;

(c) Maintaining current indexes of documents having precedential effect on decisions concerning members of the public, and publishing such indexes or making them available by other means;

(d) Receiving and considering petitions of members of the public for the issuance, revision, or cancellation of regulatory documents of some classes; and

(e) Distributing the Federal Register for official use within the Department of the Navy.

§ 701.62 Scope and applicability.

This subpart prescribes actions to be executed by, or at the direction of, Navy Department (as defined in § 700.104c of this chapter) components and specified headquarters activities for apprising members of the public of Department of the Navy regulations, policies, substantive and procedural rules, and decisions which may affect them, and for enabling members of the public to participate in Department of the Navy rulemaking processes in matters of substantial and direct concern to the public. This subpart complements subpart A, which implements Navy-wide requirements for furnishing documents to members of the the public upon request. That a document may be published or indexed and made available for public inspection and copying under this instruction does not affect the possible requirement under subpart A for producing it for examination, or furnishing a copy, in response to a request made under that subpart.

§ 701.63 Policy.

In accordance with the spirit and intent of 5 U.S.C. 552, the public has the right to maximum information concerning the organization and functions of the Department of the Navy. This includes information on the policies and the substantive and procedural rules used by the Department of the Navy in its dealings with the public. In accordance with Department of Defense policy described in 32 CFR part 336, 40 FR 4911, moreover, the public is encouraged to participate in Department of the Navy rulemaking when the proposed rule would substantially and directly affect the public.

§ 701.64 Publication of adopted regulatory documents for the guidance of the public.

(a) Classes of documents to be published. Subject to the provisions of 5 U.S.C. 552(b) which exempt specified matters from requirements for release to the public [see subpart B of this part], the classes of Department of the Navy documents required to be published on a current basis in the Federal Register are listed below.

(1) Naval organization and points of contact—description of the central and field organization of the Department of the Navy and the locations at which, the members or employees from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions;

(2) Methods and procedures for business with public—statements of the general course and methods by which Department of the Navy functions affecting members of the public are channeled and determined, including the nature and requirements of all formal and informal procedures available;

(3) Procedural rules and forms—rules of procedure for functions affecting members of the public, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations required to be submitted under such rules of procedures; and

(4) Substantive rules and policies—substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the Department of the Navy. Such rules are commonly contained in directives, manuals, and memorandums.

(ii) Internal personnel rules and internal practices. In addition to other exemptions listed in 5 U.S.C. 552(b) and subpart B of this part, particular attention is directed to the exemption pertaining to internal personnel rules and internal practices.

(iii) Local regulations. It is unnecessary to publish in the Federal Register a regulation which is essentially local in scope or application, such as a directive issued by a base commander in the implementation of his responsibility and authority under subpart G of part 700 of this title for guarding the security of the installation or controlling the access and conduct of visitors or tradesmen. However, such publication may be authorized under extraordinary circumstances, as determined by the Chief of Naval Operations or the Commandant of the Marine Corps, as appropriate, with the concurrence of the Judge Advocate General.

(iv) Incorporation by reference. with the approval of the Director of the Federal Register given in the limited instances authorized in 1 CFR Part 51 and 32 CFR 336.5(c), the requirement for publication in the Federal Register may be satisfied by reference in the Federal Register to other publications containing the information which must otherwise be published in the Federal Register. In general, matters eligible for incorporation by reference are restricted to materials in the nature of published data, criteria, standards, specifications, techniques, illustrations, or other published information which are reasonably available to members of the class affected.

(b) Public inspection. when feasible, Department of the Navy and Department of Defense documents published in the Federal Register should be made available for inspection and copying, along with available indexes of such documents, in the same locations used for copying of the documents contemplated in § 701.65.

§ 701.65 Availability, public inspection, and indexing of other documents affecting the public.

(a) Discussion. Section 552(a) of title 5, United States Code, requires the Department of the Navy to make available for public inspection and copying documents which have precedential significance on those Department of the Navy decisions which affect the public. These documents must be kept readily available for public inspection and copying at designated locations, unless they are promptly published and copies are offered for sale. Additionally, documents issued after July 4, 1967, are required to be indexed on a current basis. These indexes, or supplements thereto, must be published at least quarterly in accordance with the provisions of this paragraph. In determining whether a particular document is subject to the requirements of this paragraph, consideration should be given to the statutory purposes and legal effect of the provisions.

(1) Statutory purposes. In general, the purpose of the requirement to provide members of the public with essential information is to enable them to deal effectively and knowledgeably with Federal agencies; to apprise members of the public of the existence and contents of documents which have potential legal consequences as precedents in administrative determinations which may affect them; and to permit public examination of the basis for administrative actions which affect the public.

(2) Legal effect. If a document is required to be indexed and made available under this paragraph, it may not be used or asserted as a precedent against a member of the public unless it was indexed and made available, or unless the person against whom it is asserted had actual and timely notice of its contents.

(b) Classes of documents affected. (1) Subject to the provisions of 5 U.S.C. 552(b) which exempt specified matters from the requirements of public disclosure, the following classes of Department of the Navy documents are included in the requirements of this paragraph:

(i) Final adjudicative opinions and orders—opinions (including concurring and dissenting opinions) which are issued as part of the final disposition of adjudication proceedings (as defined in 5 U.S.C. 551) and which may have precedential effect in the disposition of other cases affecting members of the public;

(ii) Policy statements and interpretations—statements of policy and interpretations of less than general applicability (i.e., applicable only to specific cases; organizations, or persons), which are not required to be published in the Federal Register, but which may have precedential effect in the disposition of other cases affecting members of the public;

(iii) Manuals and instructions—administrative staff manuals, directives, and instructions to staff, or portions thereof, which establish Department of the Navy policy or interpretations of policy that serve as a basis for determining the rights of members of the public with regard to Department of the Navy functions. In general, manuals and instructions relating only to Internal management aspects of property or fiscal accounting, personnel administration, and most other “proprietary” functions of the department are not within the scope of this provision. This provision also does not apply to instructions for employees on methods, techniques, and tactics to be used in performing their duties; for example:

(B) Those which prescribe operational tactics; standards of performance; criteria for defense, prosecution, or settlement of cases; or negotiating or bargaining techniques, limitations, or positions; and

(2) In determining whether a document has precedential effect, the primary test is whether it is intended as guidance to be followed either in decisions or evaluations by the issuing authority's subordinates, or by the issuing authority itself in the adjudication or determination of future cases involving similar facts or issues. The kinds of orders or opinions which clearly have precedential effect are those that are intended to operate both as final dispositions of the questions involved in the individual cases presented, and as rules of decision to be followed by the issuing authority or its subordinates in future cases involving similar questions. By contrast, many adjudicative orders and opinions issued within the Department of the Navy operate only as case-by-case applications of policies or interpretations established in provisions of manuals or directives and are not themselves used, cited, or relied on as rules of decision in future cases. In these instances, the underlying manual or directive provisions obviously would have precedential effect, but the orders and opinions themselves would not have. A recommendation by an official who is not authorized to adjudicate, or to issue a binding statement of policy or interpretation in a particular matter would not have precedential effect though an order, opinion, statement of policy, or interpretation issued by an authorized official pursuant to such recommendation might have that effect.

(c) Deletion of identifying details. (1) Although the exemptions from public disclosure described in 5 U.S.C. 552 and subpart B of this part are applicable to documents which are required to be indexed and made available for public inspection and copying under this paragraph, there is no general requirement that any segregable portions of partially exempt documents be so indexed and made available for public inspection and copying. As a general rule, a record may therefore be held exempt in its entirety from the requirements of this paragraph if it is determined that it contains exempt matter and that it is reasonably foreseeable that disclosure would be harmful to an interest protected by that exemption. An exception to this general rule does exist with regard to a record which would be exempt only because it contains information which, if disclosed, would result in a clearly unwarranted invasion of privacy.

(2) Where necessary to prevent a clearly unwarranted invasion of a person's privacy, identifying details should be deleted from a record which is required to be indexed and made available for public inspection and copying under this paragraph. In every such case, the justification for the deletion must be fully stated in writing in a manner which avoids creating inferences that could be injurious to the person whose privacy is involved. Usual reasons for deletion of identifying details include the protection of privacy in a person's business affairs, medical matters, or private family matters; humanitarian considerations; and avoidance of embarrassment to a person.

(d) Publication of indexes—(1) Form of indexes. Each index should be arranged topically or by descriptive words, so that members of the public may be able to locate the pertinent documents by subject, rather than by case name or by a numbering system.

(2) Time of publication. Each component having cognizance of records required under this paragraph to be indexed shall compile and maintain an index of such records on a continually current basis. Each such index was required to initially be published by July 1, 1975. An updated version of each such index, or a current supplement thereto, shall be published by an authorized method at least annually thereafter.

(3) Methods of publication. The methods authorized for publication of the indexes contemplated in this paragraph are:

(i) Publication in the Federal Register;

(ii) Commercial publication, provided that such commercial publication is readily available to members of the public, or will be made available upon request, and payment of costs (if this method is utilized, information on the cost of copies and the address from which they may be obtained shall be published in the Federal Register); or

(iii) Furnishing internally reproduced copies upon request, at cost not to exceed the direct cost of duplication in accordance with subpart D of this part, provided that it is determined by an order published in the Federal Register, that the publication of the index by methods § 701.65(d) (3) (i) or (ii) would be unnecessary or impracticable. Such order shall state the cost of copies and the address from which they may be obtained. The Chief of Naval Operations (N09B30) is authorized to issue such an order in a proper case.

(4) Public inspection of indexes. In addition to publication by one of the foregoing methods, each index will be made available for public inspection and copying in accordance with § 701.65(e) at the locations where Department of the Navy records are available for public inspection.

(e) Where records may be inspected. Locations and times at which Department of the Navy records, and indexes thereof, are available for public inspection and copying are shown in § 701.32.

(f) Cost. Fees for copying services, if any, furnished at locations shown in § 701.32 shall be determined in accordance with subpart D of this part.

(g) Records of the United States Navy-Marine Corps Court of Military Review. The United States Navy-Marine Corps Court of Military Review is deemed to be “a court of the United States” within the meaning of 5 U.S.C. 551 and is therefore excluded from the requirements of 5 U.S.C. 552. Nevertheless, unpublished decisions of the United States Navy-Marine Corps Court of Military Review, although not indexed, are available for public inspection at the location shown in § 701.32(c).

§ 701.66 Publication of proposed regulations for public comment.

(a) Discussion. The requirements of this section are not imposed by statute, but are the implementation of policies and procedures created administratively in 32 CFR part 336. In effect, the pertinent provisions of 32 CFR part 336 establish, within the Department of Defense and its components, procedures that are analogous to the public rulemaking procedures applicable to some functions of other Federal agencies under 5 U.S.C. 553. While the administrative policy of encouraging the maximum practicable public participation in the Department of the Navy rulemaking shall be diligently followed, determinations by the Department of the Navy as to whether a proposed regulatory requirement originated by it comes within the purview of this paragraph and the corresponding provisions of 32 CFR part 336, and as to whether inviting public comment is warranted, shall be conclusive and final.

(b) Classes of documents affected. Each proposed regulation or other document of a class described in § 701.64(a) (or a proposed revision of an adopted document of any of those classes) which would “originate” within the Department of the Navy a requirement of general applicability and future effect for implementing, interpreting, or prescribing law or policy, or practice and procedure requirements constituting authority for prospective actions having substantial and direct impact on the public, or a significant portion of the public, must be evaluated to determine whether inviting public comment prior to issuance is warranted. Documents that merely implement regulations previously issued by higher naval authorities or by the Department of Defense will not be deemed to “originate” requirements within the purview of this section. If a proposed document is within the purview of this section, publication to invite public comment will be warranted unless, upon evaluation, it is affirmatively determined both that a significant and legitimate interest of the Department of the Navy or the public will be served by omitting such publication for public comment, and that the document is subject to one or more of the following exceptions:

(1) It pertains to a military or foreign affairs function of the United States which has been determined under the criteria of an Executive Order or statute to require a security classification in the interests of national defense or foreign policy;

(2) It relates to naval management, naval military or civilian personnel, or public contracts (e.g. Navy Procurement Directives), including nonappropriated fund contracts;

(3) It involves interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or

(4) It is determined with regard to the document, for good cause, that inviting the pubic comment is impracticable, unnecessary, or contrary to the public interest.

(c) Procedures—(1) Normal case. Unless the official having cognizance of a proposed regulatory document determines under the criteria of § 701.66(b) that inviting public comment is not warranted, he or she shall cause it to be published in the Federal Register with an invitation for the public to submit comments in the form of written data, views, or arguments during a specified period of not less than 30 days following the date of publication. An opportunity for oral presentation normally will not be provided, but may be provided at the sole discretion of the official having cognizance of the proposed directive if he or she deems it to be in the best interest of the Department of the Navy or the public to do so. After careful consideration of all relevant matters presented within the period specified for public comment, the proposed document may be issued in final form. After issuance, the adopted document, and a preamble explaining the relationship of the adopted document to the proposed and the nature and effect of public comments, shall be published in the Federal Register for guidance of the public.

(2) Where public comment is not warranted. The official having cognizance of a proposed document within the purview of this paragraph shall, if he or she determines that inviting public comment concerning the document is not warranted under the criteria of § 701.66(b), incorporate that determination, and the basis therefor, in the document when it is issued or submitted to a higher authority for issuance. After issuance, such document shall be published in the Federal Register for the guidance of the public, if required under § 701.64(b).

§ 701.67 Petitions for issuance, revision, or cancellation of regulations affecting the public.

In accordance with the provisions of 32 CFR part 336, the Department of the Navy shall accord any interested person the right to petition in writing, for the issuance, revision, or cancellation of regulatory document that originates, or would originate, for the Department of the Navy, a policy, requirement, or procedure which is, or would be, within the purview of § 701.66. The official having cognizance of the particular regulatory document involved, or having cognizance of the subject matter of a proposed document, shall give full and prompt consideration to any such petition. Such official may, at his or her absolute discretion, grant the petitioner an opportunity to appear, at his or her own expense, for the purpose of supporting the petition, if this is deemed to be compatible with orderly conduct of public business. The petitioner shall be advised in writing of the disposition, and the reasons for the disposition, of any petition within the purview of this section.

Subpart F—Department of the Navy Privacy Act ProgramAuthority:

Pub. L. 93-579, 88 Stat 1896 (5 U.S.C. 552a).

Source:

65 FR 31456, May 18, 2000, unless otherwise noted.

§ 701.100 Purpose.

Subparts F and G of this part implement the Privacy Act (5 U.S.C. 552a), and DoD Directive 5400.11,1 and DoD 5400.11-R,2 (32 CFR part 310) and provides Department of the Navy policies and procedures for:

1 Copies may be obtained: http://www.whs.osd.mil/corres.htm.

2 See footnote 1 to § 701.100.

(a) Governing the collection, safeguarding, maintenance, use,access, amendment, and dissemination of personal information kept by Department of the Navy in systems of records;

(b) Notifying individuals if any systems of records contain a record pertaining to them;

(c) Verifying the identity of individuals who request their records before the records are made available to them;

(d) Notifying the public of the existence and character of each system of records.

(e) Exempting systems of records from certain requirements of the Privacy Act; and

(f) Governing the Privacy Act rules of conduct for Department of the Navy personnel, who will be subject to criminal penalties for noncompliance with 5 U.S.C. 552a, as amended by the Computer Matching Act of 1988.

§ 701.101 Applicability.

This subpart and subpart G of this part apply throughout theDepartment of the Navy. It is also applicable to contractors by contract or other legally binding action, whenever a Department of the Navy contract provides for the operation of a system of records or portion of a system of records to accomplish a Department of the Navy function. For the purposes of any criminal liabilities adjudged, any contractor or any employee of such contractor is considered to be an employee of Department of the Navy. In case of a conflict, this subpart and subpart G of this part take precedence over any existing Department of the Navy directive that deals with the personal privacy and rights of individuals regarding their personal records, except for disclosure of personal information required by 5 U.S.C. 552 (1988) as amended by the Freedom of Information Reform Act and implemented by Secretary of the Navy Instruction 5720.42F,3 ‘Department of the Navy Freedom of Information Act Program.’

For the purposes of this subpart and subpart G of this part, the following meanings apply.

Access. The review or copying of a record or parts thereofcontained in a system of records by any individual.

Agency. For the purposes of disclosing records subject to the Privacy Act between or among Department of Defense (DoD) components, the Department of Defense is considered a single agency. For all other purposes, Department of the Navy is considered an agency within the meaning of Privacy Act.

Confidential source. A person or organization who has furnished information to the Federal Government either under an express promise that the person's or the organization's identity will be held in confidence or under an implied promise of such confidentiality if this implied promise was made before September 27, 1975.

Defense Data Integrity Board. Consists of members of the Defense Privacy Board, as outlined in DoD Directive 5400.11 and, in addition, the DoD Inspector General or the designee, when convened to oversee, coordinate and approve or disapprove all DoD component computer matching covered by the Privacy Act.

Disclosure. The transfer of any personal information from a system of records by any means of communication (such as oral, written, electronic, mechanical, or actual review), to any person, private entity, or government agency, other than the subject of the record, the subject's designated agent or the subject's legal guardian.

Federal personnel. Officers and employees of the Government of the United States, members of the uniformed services (including members of the Reserve Components), individuals or survivors thereof, entitled to receive immediate or deferred retirement benefits under any retirement program of the Government of the United States (including survivor benefits).

Individual. A living citizen of the United States or alienlawfully admitted to the U.S. for permanent residence. The legalguardian of an individual has the same rights as the individual and may act on his or her behalf. No rights are vested in the representative of a deceased person under this instruction and the term “individual” does not embrace an individual acting in a non-personal capacity (for example, sole proprietorship or partnership).

Individual access. Access to information pertaining to the individual by the individual or his or her designated agent or legal guardian.

Maintain. Includes maintain, collect, use, or disseminate.

Member of the public. Any individual or party acting in a private capacity.

Minor. Under this subpart and subpart G of this part, a minor is an individual under 18 years of age, who is not a member of the U.S. Navy or Marine Corps, nor married.

Official use. Under this subpart and subpart G of this part, this term is used when Department of the Navy officials and employees have a demonstrated need for the use of any record or the information contained therein in the performance of their official duties.

Personal information. Information about an individual that is intimate or private to the individual, as distinguished from information related solely to the individual's official functions or public life.

Privacy Act (PA) request. A request from an individual for notification as to the existence of, access to, or amendment of records pertaining to that individual. These records must be maintained in a system of records.

Record. Any item, collection, or grouping of information about an individual that is maintained by a naval activity including, but not limited to, the individual's education, financial transactions, and medical, criminal, or employment history, and that contains the individual's name or other identifying particulars assigned to the individual, such as a finger or voice print or a photograph.

Review authority. An official charged with the responsibility to rule on administrative appeals of initial denials of requests for notification, access, or amendment of records. The Secretary of the Navy has delegated his review authority to the Assistant Secretary of the Navy (Manpower and Reserve Affairs (ASN(MRA)), the General Counsel (OGC), and the Judge Advocate General (NJAG). Additionally, the Office of Personnel Management (OPM) is the review authority for civilian official personnel folders or records contained in any other OPM record.

Risk assessment. An analysis which considers informationsensitivity, vulnerability, and cost to a computer facility or word processing center in safeguarding personal information processed or stored in the facility or center.

Routine use. Disclosure of a record outside the Department of Defense for a purpose that is compatible with the purpose for which the record was collected and maintained by the Department of Defense. The routine use must have been included in the notice for the system of records published in the Federal Register.

Statistical record. A record maintained only for statistical research, or reporting purposes, and not used in whole or in part in making any determination about a specific individual.

System manager. An official who has overall responsibility for a system of records. He or she may serve at any level in Department of the Navy. Systems managers are indicated in the published record systems notices. If more than one official is indicated as a system manager, initial responsibility resides with the manager at the appropriate level (i.e., for local records, at the local activity).

System of records. A group of records under the control of a Department of the Navy activity from which information is retrieved by the individual's name or by some identifying number, symbol, or other identifying particular assigned to the individual. System notices for all Privacy Act systems of records must be published in the Federal Register and are also published in periodic Chief of Naval Operations Notes (OPNAVNOTEs) 5211.4

4 See footnote 3 to § 701.101.

Word processing equipment. Any combination of electronichardware and computer software integrated in a variety of forms(firmware, programmable software, hard wiring, or similar equipment) that permits the processing of textual data. Generally, the equipment contains a device to receive information, a computer-like processor with various capabilities to manipulate the information, a storage medium, and an output device.

Word processing system. A combination of equipment employing automated technology, systematic procedures, and trained personnel for the primary purpose of manipulating human thoughts and verbal or written communications into a form suitable to the originator. The results are written or graphic presentations intended to communicate verbally or visually with another individual.

Working day. All days excluding Saturday, Sunday, and legal holidays.

§ 701.103 Policy.

It is the policy of Department of the Navy to:

(a) Ensure that all its personnel comply fully with 5 U.S.C. 552a, DoD Directive 5400.11 and DoD 5400.11-R, to protect individuals from unwarranted invasions of privacy. Individuals covered by this protection are living citizens of the U.S. or aliens lawfully admitted for permanent residence. A legal guardian of an individual or parent of a minor when acting on the individual's or minor's behalf, has the same rights as the individual or minor. (A member of the Armed Forces is not a minor for the purposes of this subpart and subpart G of this part).

(b) Collect, maintain, and use only that personal information needed to support a Navy function or program as authorized by law or E.O., and disclose this information only as authorized by 5 U.S.C. 552a and this subpart and subpart G of this part. In assessing need, consideration shall be given to alternatives, such as use of information not individually identifiable or use of sampling of certain data for certain individuals only. Additionally, consideration is to be given to the length of time information is needed, and the cost of maintaining the information compared to the risks and adverse consequences of not maintaining the information.

(c) Keep only personal information that is timely, accurate,complete, and relevant to the purpose for which it was collected.

(d) Let individuals have access to, and obtain copies of, all or portions of their records, subject to exemption procedures authorized by law and this subpart and subpart G of this part.

(f) Let individuals request an administrative review of decisions that deny them access, or refuse to amend their records.

(g) Ensure that adequate safeguards are enforced to prevent misuse, unauthorized disclosure, alteration, or destruction of personal information in records.

(h) Maintain no records describing how an individual exercises his or her rights guaranteed by the First Amendment (freedom of religion, political beliefs, speech, and press; peaceful assemblage; and petition for redress of grievances), unless they are:

(1) Expressly authorized by statute;

(2) Authorized by the individual;

(3) Within the scope of an authorized law enforcement activity; or

(4) For the maintenance of certain items of information relating to religious affiliation for members of the naval service who are chaplains. This should not be construed, however, as restricting or excluding solicitation of information which the individual is willing to have in his or her record concerning religious preference, particularly that required in emergency situations.

(5) Maintain only systems of records which have been published in the Federal Register, in accordance with periodic Chief of Naval Operations Notes (OPNAVNOTEs) 5211 and § 701.105. These OPNAVNOTEs 5211 provide a listing of all Department of the Navy Privacy Act systems of records and identify the Office of Personnel Management (OPM) government-wide systems containing information on Department of the Navy civilian employees, even though technically, Department of the Navy does not have cognizance over them. A Privacy Act systems notice outlines what kinds of information may be collected and maintained by naval activities. When collecting/maintaining information in a Privacy Act system of records, review the systems notice to ensure activity compliance is within the scope of the system. If you determine the systems notice does not meet your needs, contact the systems manager or Chief of Naval Operations (N09B30) with your concerns so that amendment of the system may be considered.

§ 701.104 Responsibility and authority.

(a) Chief of Naval Operations (CNO). CNO is designated as theofficial responsible for administering and supervising the execution of 5 U.S.C. 552a, DoD Directive 5400.11, and DoD 5400.11-R. CNO has designated the Assistant Vice Chief of Naval Operations (N09B30) as principal Privacy Act Coordinator for the Department of the Navy to:

(1) Set Department of the Navy policy on the provisions of thePrivacy Act.

(2) Serve as principal advisor on all Privacy Act matters.

(3) Oversee the administration of the Privacy Act program, which includes preparing the Department of the Navy Privacy Act report for submission to Congress.

(5) Conduct staff assistance visits within Department of the Navy to review compliance with 5 U.S.C. 552a and this subpart and subpart G of this part.

(6) Coordinate and prepare responses for Privacy Act requestsreceived for Office of the Secretary of the Navy records.

(b) Commandant of the Marine Corps (CMC). CMC is responsible for administering and supervising the execution of this subpart and subpart G of this part within the Marine Corps. The Commandant has designated the Director, Manpower Management Information Systems Division (HQMC (Code ARAD)) as the Privacy Act coordinator for Headquarters, U.S. Marine Corps.

(c) Privacy Act Coordinator. Each addressee is responsible forimplementing and administering a Privacy Act program under this subpart and subpart G of this part. Each addressee shall designate a Privacy Act Coordinator to:

(1) Serve as principal point of contact on Privacy Act matters.

(2) Provide training for activity/command personnel on theprovisions of 5 U.S.C. 552a and this subpart and subpart G of this part.

(9) Echelon 2 Privacy Act Coordinators shall provide CNO (N09B30) with a complete listing of all Privacy Act Coordinators under their jurisdiction. Such information should include activity name and address, office code, name of Privacy Act Coordinator, commercial and DSN telephone number, and FAX number, if applicable.

(d) Release authority. Officials having cognizance over therequested subject matter are authorized to respond to requests fornotification, access, and/or amendment of records. These officials could also be systems managers (see § 701.104(g)).

(e) Denial authority. Within the Department of the Navy, thefollowing chief officials, their respective vice commanders, deputies, principal assistants, and those officials specifically designated by the chief official are authorized to deny requests, either in whole or in part, for notification, access and amendment, made under this subpart and subpart G of this part, when the records relate to matters within their respective areas of responsibility or chain of command:

(1) Department of the Navy. Civilian Executive Assistants; CNO; CMC; Chief of Naval Personnel; Commanders of the Naval Systems Commands, Office of Naval Intelligence, Naval Security Group Command, Naval Imaging Command, and Naval Computer and Telecommunications Command; Chief, Bureau of Medicine and Surgery; Auditor General of the Navy; Naval Inspector General; Director, Office of Civilian Personnel Management; Chief of Naval Education and Training; Commander, Naval Reserve Force; Chief of Naval Research; Commander, Naval Oceanography Command; heads of Department of the Navy Staff Offices, Boards, and Councils; Flag Officers and General Officers. NJAG and his Deputy, and OGC and his Deputies are excluded from this grant of authorization. While NJAG and OGC are not denial authorities, they are authorized to further delegate the authority conferred here to other senior officers/officials within NJAG and OGC.

(2) For the shore establishment.(i) All officers authorized under Article 22, Uniform Code of Military Justice (UCMJ) or designated in section 0120, Manual of the Judge Advocate General (JAGINST 5800.7C),5 to convene general courts-martial.

(3) In the Operating Forces. All officers authorized by Article 22, Uniform Code of Military Justice (UCMJ), or designated in section 0120, Manual of the Judge Advocate General (JAGINST 5800.7C), to convene general courts-martial.

(f) Review authority. (1) The Assistant Secretary of the Navy(Manpower and Reserve Affairs), is the Secretary's designee, and shall act upon requests for administrative review of initial denials of requests for amendment of records related to fitness reports and performance evaluations of military personnel (see § 701.111(c)(3)).

(2) The Judge Advocate General and General Counsel, as theSecretary's designees, shall act upon requests for administrative review of initial denials of records for notification, access, or amendment of records, as set forth in § 701.111(c)(2) and (4).

(3) The authority of the Secretary of the Navy (SECNAV), as the head of an agency, to request records subject to the Privacy Act from an agency external to the Department of Defense for civil or criminal law enforcement purposes, under subsection (b)(7) of 5 U.S.C. 552a, is delegated to the Commandant of the Marine Corps, the Director of Naval Intelligence, the Judge Advocate General, and the General Counsel.

(1) Ensure the system has been published in the Federal Register and that any additions or significant changes are submitted to CNO (N09B30) for approval and publication. The systems of records should be maintained in accordance with the systems notices as published in the periodic Chief of Naval Operations Notes (OPNAVNOTEs) 5211, “Current Privacy Act Issuances.”

(2) Maintain accountability records of disclosures.

(h) Department of the Navy employees. Each employee of theDepartment of the Navy has certain responsibilities for safeguarding the rights of others. These include:

(1) Not disclosing any information contained in a system of records by any means of communication to any person or agency, except as authorized by this subpart and subpart G of this part.

(2) Not maintaining unpublished official files which would fall under the provisions of 5 U.S.C. 552a.

(3) Safeguarding the privacy of individuals and confidentiality of personal information contained in a system of records.

§ 701.105 Systems of records.

To be subject to this subpart and subpart G of this part, a “system of records” must consist of “records” that are retrieved by the name, or some other personal identifier, of an individual and be under the control of Department of the Navy.

(a) Retrieval practices. (1) Records in a group of records that are not retrieved by personal identifiers are not covered by this subpart and subpart G of this part, even if the records contain information about individuals and are under the control of Department of the Navy. The records must be retrieved by personal identifiers to become a system of records.

(2) If records previously not retrieved by personal identifiers are rearranged so they are retrieved by personal identifiers, a new system notice must be submitted in accordance with § 701.107.

(3) If records in a system of records are rearranged so retrieval is no longer by personal identifiers, the records are no longer subject to this subpart and subpart G of this part and the records system notice should be deleted in accordance with § 701.107.

(b) Recordkeeping standards. A record maintained in a system of records subject to this subpart and subpart G of this part must meet the following criteria:

(1) Be accurate. All information in the record must be factually correct.

(2) Be relevant. All information contained in the record must be related to the individual who is the record subject and also must be related to a lawful purpose or mission of the Department of the Navy activity maintaining the record.

(3) Be timely. All information in the record must be reviewedperiodically to ensure that it has not changed due to time or later events.

(4) Be complete. It must be able to stand alone in accomplishing the purpose for which it is maintained.

(5) Be necessary. All information in the record must be needed to accomplish a Department of the Navy mission or purpose established by Federal Law or E.O. of the President.

(c) Authority to establish systems of records. Identify the specific Federal statute or E.O. of the President that authorizes maintaining each system of records. When a naval activity uses its “internal housekeeping” statute, i.e., 5 U.S.C. 301, Departmental Regulations, the naval instruction that implements the statute should also be identified. A statute or E.O. authorizing a system of records does not negate the responsibility to ensure the information in the system of records is relevant and necessary.

(d) Exercise of First Amendment rights. (1) Do not maintain any records describing how an individual exercises rights guaranteed by the First Amendment of the U.S. Constitution unless expressly authorized by Federal law; the individual; or pertinent to and within the scope of an authorized law enforcement activity.

(2) First amendment rights include, but are not limited to, freedom of religion, freedom of political beliefs, freedom of speech, freedom of the press, the right to assemble, and the right to petition.

(e) System manager's evaluations and reviews. (1) Evaluate each new system of records. Before establishing a system of records, evaluate the information to be included and consider the following:

(i) The relationship of each item of information to be collected and retained to the purpose for which the system is maintained (all information must be relevant to the purpose);

(ii) The specific impact on the purpose or mission if each category of information is not collected (all information must be necessary to accomplish a lawful purpose or mission.);

(iii) The ability to meet the informational needs without using personal identifiers (will anonymous statistical records meet the needs?);

(iv) The length of time each item of information must be kept;

(v) The methods of disposal;

(vi) The cost of maintaining the information; and

(vii) Whether a system already exists that serves the purpose of the new system.

(2) Evaluate and review all existing systems of records.

(i) When an alteration or amendment of an existing system isprepared pursuant to § 701.107(b) and (c), do the evaluationdescribed in paragraph (e) of this section.

(ii) Conduct the following reviews annually and be prepared toreport, in accordance with § 701.104(c)(8), the results andcorrective actions taken to resolve problems uncovered.

(A) Training practices to ensure all personnel are familiar with the requirements of 5 U.S.C. 552a, and DoD Directive 5400.11, “DoD Privacy Program”, this subpart and subpart G of this part, and any special needs their specific jobs entail.

(B) Recordkeeping and disposal practices to ensure compliance with this subpart and subpart G of this part.

(C) Ongoing computer matching programs in which records from the system have been matched with non-DoD records to ensure that the requirements of § 701.115 have been met.

(D) Actions of Department of the Navy personnel that resulted in either Department of the Navy being found civilly liable or a person being found criminally liable under 5 U.S.C. 552a, to determine the extent of the problem and find the most effective way of preventing the problem from occurring in the future.

(E) Each system of records notice to ensure it accurately describes the system. Where major changes are needed, alter the system notice in accordance with § 701.107(b). If minor changes are needed, amend the system notice pursuant to § 701.107(c).

(iii) Every even-numbered year, review a random sample of Department of the Navy contracts that provide for the operation of a system of records to accomplish a Department of the Navy function, to ensure the wording of each contract complies with the provisions of 5 U.S.C. 552a and paragraph (h) of this section.

(iv) Every three years, beginning in 1992, review the routine use disclosures associated with each system of records to ensure the recipient's use of the records continues to be compatible with the purpose for which the information was originally collected.

(v) Every three years, beginning in 1993, review each system of records for which exemption rules have been established to determine whether each exemption is still needed.

(vi) When directed, send the reports through proper channels to the CNO (N09B30).

(f) Discontinued information requirements. (1) Immediately stop collecting any category or item of information about individuals that is no longer justified, and when feasible, remove the information from existing records.

(2) Do not destroy records that must be kept in accordance with retention and disposal requirements established under SECNAVINST 5212.5,7 “Disposal of Navy and Marine Corps Records.”

(g) Review records before disclosing outside the Federal government. Before disclosing a record from a system of records to anyone outside the Federal government, take reasonable steps to ensure the record which is being disclosed is accurate, relevant, timely, and complete for the purposes it is being maintained.

(h) Federal government contractors—(1) Applicability to Federal government contractors. (i) When a naval activity contracts for the operation of a system of records to accomplish its function, the activity must ensure compliance with this subpart and subpart G of this part and 5 U.S.C. 552a. For the purposes of the criminal penalties described in 5 U.S.C. 552a, the contractor and its employees shall be considered employees of the agency during the performance of the contract.

(ii) Consistent with parts 24 and 52 of the Federal Acquisition Regulation (FAR), contracts for the operation of a system of records shall identify specifically the record system and the work to be performed, and shall include in the solicitations and resulting contract the terms as prescribed by the FAR.

(iii) If the contractor must use records that are subject to this subpart and subpart G of this part to perform any part of a contract, the contractor activities are subject to this subpart and subpart G of this part.

(iv) This subpart and subpart G of this part do not apply to records of a contractor that are:

(A) Established and maintained solely to assist the contractor in making internal contractor management decisions, such as records maintained by the contractor for use in managing the contract;

(B) Maintained as internal contractor employee records, even when used in conjunction with providing goods or services to the naval activity;

(C) Maintained as training records by an educational organization contracted by a naval activity to provide training when the records of the contract students are similar to and commingled with training records of other students, such as admission forms, transcripts, and academic counseling and similar records; or

(D) Maintained by a consumer reporting agency to which records have been disclosed under contract in accordance with 31 U.S.C. 952d.

(v) For contracting that is subject to this subpart and subpart G of this part, naval activities shall publish instructions that:

(B) Inform prospective contractors of their responsibilities under this subpart and subpart G of this part and the Department of the Navy Privacy Program;

(C) Establish an internal system for reviewing contractor'sperformance for compliance with the Privacy Act; and

(D) Provide for the biennial review of a random sample of contracts that are subject to this subpart and subpart G of this part.

(2) Contracting procedures. The Defense Acquisition Regulatory (DAR) Council, which oversees the implementation of the FAR within the Department of Defense, is responsible for developing the specific policies and procedures for soliciting, awarding, and administering contracts that are subject to this subpart and subpart G of this part and 5 U.S.C. 552a.

(3) Contractor compliance. Naval activities shall establish contract surveillance programs to ensure contractors comply with the procedures established by the DAR Council under the preceding subparagraph.

(4) Disclosing records to contractors. Disclosing records to acontractor for use in performing a contract let by a naval activity is considered a disclosure within Department of the Navy. The contractor is considered the agent of Department of the Navy when receiving and maintaining the records for that activity.

§ 701.106 Safeguarding records in systems of records.

Establish appropriate administrative, technical, and physicalsafeguards to ensure the records in every system of records areprotected from unauthorized alteration, destruction, or disclosure. Protect the records from reasonably anticipated threats or hazards that could result in substantial harm, embarrassment, inconvenience, or unfairness to any individual on whom information is maintained.

(a) Minimum standards. (1) Conduct risk analysis and management planning for each system of records. Consider sensitivity and use of the records, present and projected threats and vulnerabilities, and present and projected cost-effectiveness of safeguards. The risk analysis may vary from an informal review of a small, relatively insensitive system to a formal, fully quantified risk analysis of a large, complex, and highly sensitive system.

(2) Train all personnel operating a system of records or usingrecords from a system of records in proper record security procedures.

(3) Label information exempt from disclosure under this subpart and subpart G of this part to reflect their sensitivity, such as “FOR OFFICIAL USE ONLY,” “PRIVACY ACT SENSITIVE: DISCLOSE ON A NEED-TO-KNOW BASIS ONLY,” or some other statement that alerts individuals of the sensitivity to the records.

(4) Administer special administrative, physical, and technicalsafeguards to protect records processed or stored in an automated data processing or word processing system to protect them from threats unique to those environments.

(b) Records disposal. (1) Dispose of records from systems of records so as to prevent inadvertent disclosure. Disposal methods are considered adequate if the records are rendered unrecognizable or beyond reconstruction (i.e., such as tearing, burning, melting, chemical decomposition, burying, pulping, pulverizing, shredding, or mutilation). Magnetic media may be cleared by completely erasing, overwriting, or degaussing the tape.

(2) The transfer of large volumes of records (e.g., printouts and computer cards) in bulk to a disposal activity such as a Defense Reutilization and Marketing Office for authorized disposal is not a disclosure of records, if the volume of records, coding of the information, or some other factor render it impossible to recognize any personal information about a specific individual.

(3) When disposing or destroying large quantities of records from a system of records, care must be taken to ensure that the bulk of the records is maintained to prevent easy identification of specific records. If such bulk is maintained, no special procedures are required. If bulk is not maintained, or if the form of the records makes individually identifiable information easily discernable, dispose of the records in accordance with paragraph (b)(1) of this section.

(a) Criteria for a new system of records. A new system of records is one for which no existing system notice has been published in the Federal Register. If a notice for a system of records has been canceled or deleted, and it is determined that it should be reinstated or reused, a new system notice must be published in the Federal Register. Advance public notice must be given before a naval activity may begin to collect information for or use a new system of records. The following procedures apply:

(1) Describe in the record system notice the contents of the record system and the purposes and routine uses for which the information will be used and disclosed.

(2) The public shall be given 30 days to comment on any proposed routine uses before the routine uses are implemented.

(3) The notice shall contain the date the system of records will become effective.

(b) Criteria for an alteration to a system of records notice. A system is considered altered when any one of the following actions occur or is proposed:

(1) A significant increase or change in the number or types ofindividuals about whom records are maintained. For example, a decision to expand a system of records that originally covered personnel assigned to only one naval activity to cover personnel at several installations would constitute an altered system. An increase or decrease in the number of individuals covered due to normal growth or decrease is not an alteration.

(2) A change that expands the types or categories of information maintained. For example, a personnel file that has been expanded to include medical records would be an alteration.

(3) A change that alters the purpose for which the information is used. In order to be an alteration, the change must be one that is not reasonably inferred from any of the existing purposes.

(4) A change to equipment configuration (either hardware orsoftware) that creates substantially greater use of records in thesystem. For example, placing interactive computer terminals at regional offices when the system was formerly used only at the headquarters would be an alteration.

(5) A change in the manner in which records are organized or in the method by which records are retrieved.

(6) Combining record systems due to a reorganization withinDepartment of the Navy.

(7) Retrieving by Social Security Numbers (SSNs), records thatpreviously were retrieved only by names would be an alteration if the present notice failed to indicate retrieval by SSNs. An altered system of records must be published in the Federal Register. Submission for an alteration must contain a narrative statement, the specific changes altering the system, and the system of records notice.

(c) Criteria for amending a systems of records notice. Minor changes to published system of records notices are considered amendments. All amendments should be forwarded to CNO (N09B30) for publication in the Federal Register. When submitting an amendment to a system of records notice, the naval activity must include a description of the specific changes proposed and the system of records notice.

(d) Criteria for deleting a system of records notice. When a system of records is discontinued, incorporated into another system, or determined to be no longer subject to this subpart and subpart G of this part, a deletion notice must be published in the Federal Register. The deletion notice shall include the system identification number, system name, and the reason for deleting it. If a system is deleted through incorporation into or merger with another system, identify the successor system in the deletion notice.

§ 701.108Collecting information about individuals.

(a) Collecting directly from the individual. To the greatest extent practicable, collect information for systems of records directly from the individual to whom the record pertains if the record may be used to make an adverse determination about the individual's rights, benefits, or privileges under the Federal programs.

(b) Collecting information about individuals from third persons. It might not always be practical to collect all information about an individual directly from that person, such as verifying information through other sources for security or employment suitability determinations; seeking other opinions, such as a supervisor's comments on past performance or other evaluations; obtaining the necessary information directly from the individual would be exceptionally difficult or would result in unreasonable costs or delays; or, the individual requests or consents to contacting another person to obtain the information.

(c) Soliciting the social security number (SSN). (1) It is unlawful for any Federal, State, or local government agency to deny an individual a right, benefit, or privilege provided by law because the individual refuses to provide his or her SSN. However, this prohibition does not apply if a Federal law requires that the SSN be provided, or the SSN is required by a law or regulation adopted before January 1, 1975, to verify the individual's identity for a system of records established and in use before that date.

(2) Before requesting an individual to provide the SSN, theindividual must be advised whether providing the SSN is mandatory or voluntary; by what law or other authority the SSN is solicited; and what uses will be made of the SSN.

(3) The preceding advice relates only to the SSN. If otherinformation about the individual is solicited for a system of records, a Privacy Act statement (PAS) also must be provided to him/her.

(4) The notice published in the Federal Register for each system of records containing SSNs solicited from individuals must indicate the authority for soliciting the SSNs and whether it is mandatory for the individuals to provide their SSNs. E.O. 9397 requires federal agencies to use SSNs as numerical identifiers for individuals in most federal records systems, however, it does not make it mandatory for individuals to provide their SSNs.

(5) When entering military service or civilian employment with the Department of the Navy, individuals must provide their SSNs. This is then the individual's numerical identifier and is used to establish personnel, financial, medical, and other official records (as authorized by E.O. 9397). The individuals must be given the notification described above. Once the individual has provided his or her SSN to establish the records, a notification is not required when the SSN is requested only for identification or to locate the records.

(6) The Federal Personnel Manual 8 must be consulted whensoliciting SSNs for use in systems of records maintained by the Office of Personnel Management.

(7) A Department of the Navy activity may request an individual's SSN even though it is not required by Federal statute, or is not for a system of records in existence and operating prior to January 1, 1975. However, the separate Privacy Act Statement for the SSN, alone, or a merged Privacy Act Statement covering both the SSN and other items of personal information, must make clear that disclosure of the number is voluntary. If the individual refuses to disclose his or her SSN, the activity must be prepared to identify the individual by alternate means.

(d) Contents of Privacy Act Statement. (1) When an individual is requested to furnish information about himself/herself for a system of records, a Privacy Act Statement must be provided to the individual, regardless of the method used to collect the information (i.e., forms, personal or telephonic interview, etc). If the information requested will not be included in a system of records, a Privacy Act Statement is not required.

(ii) Whether or not it is mandatory for the individual to provide the requested information (It is only mandatory when a Federal law or E.O. of the President specifically imposes a requirement to furnish the information and provides a penalty for failure to do so. If furnishing information is a condition for granting a benefit or privilege voluntarily sought by the individual, it is voluntary for the individual to give the information.);

(iii) The principle purposes for collecting the information;

(iv) The routine uses that will be made of the information (i.e., to whom and why it will be disclosed outside the Department of Defense); and

(v) The possible effects on the individual if the requestedinformation is not provided.

(3) The Privacy Act Statement must appear on the form used tocollect the information or on a separate form that can be retained by the individual collecting the information. If the information is collected by means other than a form completed by the individual, i.e., solicited over the telephone, the Privacy Act Statement should be read to the individual and if requested by the individual, a copy sent to him/her. There is no requirement that the individual sign the Privacy Act Statement.

(e) Format for Privacy Act Statement. When forms are used to collect information about individuals for a system of records, the Privacy Act Statement shall appear as follows (listed in the order of preference):

(1) Immediately below the title of the form,

(2) Elsewhere on the front page of the form (clearly indicating it is the Privacy Act Statement),

(3) On the back of the form with a notation of its location below the title of the form, or

(4) On a separate form which the individual may keep.

§ 701.109 Access to records.

(a) Individual access to records. (1) Right of access. Onlyindividuals who are subjects of records maintained in systems of records and by whose personal identifiers the records are retrieved have the right of individual access under this subpart and subpart G of this part, unless they provide written authorization for their representative to act on their behalf. Legal guardians or parents acting on behalf of a minor child also have the right of individual access under this subpart and subpart G of this part.

(2) Notification of record's existence. Each naval activity shall establish procedures for notifying an individual, in response to his or her request, if a system of records identified by him/her contains a record pertaining to the individual.

(3) Individual request for access. Individuals shall addressrequests for access to records in systems of records to the systemmanager or the office designated in the Department of the Navycompilation of system notices (periodic Chief of Naval Operations Notes (OPNAVNOTEs) 5211, “Current Privacy Act Issuances”).

(ii) When requesting records in writing, naval activities may not insist that a requester submit a notarized signature. The courts have ruled that an alternative method of verifying identity must be established for individuals who do not have access to notary services. This alternative permits requesters to provide an unsworn declaration that states “I declare under perjury or penalty under the laws of the United States of America that the foregoing is true and correct.”

(iii) When an individual seeks access in person, identification can be verified by documents normally carried by the individual (i.e., identification card, driver's license, or other license, permit or pass normally used for identification purposes).

(iv) When access is requested other than in writing, identity may be verified by the individual's providing minimum identifying data such as full name, date and place of birth, or other information necessary to locate the record sought. If the information sought is sensitive, additional identifying data may be required. Telephonic requests should not be honored.

(v) Allow an individual to be accompanied by a person of his or her choice when viewing the record; however, require the individual to provide written authorization to have the record discussed in front of the other person.

(vi) Do not deny access to an individual who is the subject of the record solely for refusing to divulge his or her SSN, unless it is the only means of retrieving the record or verifying identity.

(vii) Do not require the individual to explain why he or she is seeking access to a record under this subpart and subpart G of this part.

(viii) Only a designated denial authority may deny access. Thedenial must be in writing and contain the information required by paragraph (d) of this section.

(5) Blanket requests not honored. Do not honor requests fromindividuals for notification and/or access concerning all Department of the Navy systems of records. In these instances, notify the individual that requests for notification and/or access must be directed to the appropriate system manager for the particular record system being requested, as indicated in the periodic Chief of Naval Operations Notes (OPNAVNOTEs) 5211, “Current Privacy Act Issuances”; and the request must either designate the particular system of records to be searched, or provide sufficient information for the system manager to identify the appropriate system. Also, provide the individual with any other information needed for obtaining consideration of his or her request.

(6) Granting individual access to records. (i) Grant the individual access to the original record (or exact copy) without any changes or deletions, other than those made in accordance with § 701.113.

(ii) Grant the individual's request for an exact copy of the record, upon the signed authorization of the individual, and provide a copy to anyone designated by the individual. In either case, the copying fees may be assessed to the individual pursuant to § 701.109(b).

(iii) If requested, explain any record or portion of a record that is not understood, as well as any changes or deletions.

(7) Illegible or incomplete records. Do not deny an individualaccess solely because the physical condition or format of the record does not make it readily available (i.e., when the record is in a deteriorated state or on magnetic tape). Either prepare an extract or recopy the document exactly.

(8) Access by parents and legal guardians. (i) The parent of any minor, or the legal guardian of any individual declared by a court of competent jurisdiction to be incompetent due to physical or mental incapacity or age, may obtain access to the record of the minor or incompetent individual if the parent or legal guardian is acting on behalf or for the benefit of the minor or incompetent. However, with respect to access by parents and legal guardians to medical records and medical determinations about minors, use the following procedures:

(A) In the United States, the laws of the state where the records are located might afford special protection to certain medical records (i.e., drug and alcohol abuse treatment, and psychiatric records). The state statutes might apply even if the records are maintained by a naval medical facility.

(B) For installations located outside the U.S., the parent or legal guardian of a minor shall be denied access if all four of the following conditions are met:

(1) The minor at the time of the treatment or consultation was 15, 16, or 17 years old;

(2) The treatment or consultation was within a program authorized by law or regulation to provide confidentiality to the minor;

(3) The minor indicated a desire that the treatment or consultation record be handled in confidence and not disclosed to a parent or guardian; and

(4) The parent or legal guardian does not have the writtenauthorization of the minor or a valid court order granting access.

(ii) A minor or incompetent has the same right of access as any other individual under this subpart and subpart G of this part. The right of access of the parent or legal guardian is in addition to that of the minor or incompetent.

(9) Access to information compiled in reasonable anticipation of a civil proceeding. (i) An individual is not entitled under this subpart and subpart G of this part to access information compiled in reasonable anticipation of a civil action or proceeding.

(ii) The term “civil action or proceeding” includes quasi-judicial and pre-trial judicial proceedings, as well as formal litigation.

(iii) Paragraphs (a)(9)(i) and (ii) of this section do not prohibit access torecords compiled or used for purposes other than litigation, nor prohibit access to systems of records solely because they are frequently subject to litigation. The information must have been compiled for the primary purpose of litigation.

(10) Personal notes or records not under the control of theDepartment of the Navy. (i) Certain documents under the control of a Department of the Navy employee and used to assist him/her in performing official functions are not considered Department of the Navy records within the meaning of this subpart and subpart G of this part. These documents are not systems of records that are subject to this subpart and subpart G of this part, if they are:

(A) Maintained and discarded solely at the discretion of the author;

(B) Created only for the author's personal convenience;

(C) Not the result of official direction or encouragement, whether oral or written; and

(D) Not shown to other persons for any reason or filed in agency files.

(ii) [Reserved]

(11) Relationship between the Privacy Act and FOIA. In someinstances, individuals requesting access to records pertaining tothemselves may not know which Act to cite as the appropriate statutory authority. The following guidelines are to ensure that the individuals receive the greatest degree of access under both Acts:

(i) Access requests that specifically state or reasonably imply that they are made under 5 U.S.C. 552 (1988) as amended by the Freedom of Information Reform Act of 1986, are processed under Secretary of the Navy Instruction 5720.42F, “Department of the Navy Freedom of Information Act Program.”

(ii) Access requests that specifically state or reasonably imply that they are made under 5 U.S.C. 552a are processed under this subpart and subpart G of this part.

(iii) Access requests that cite both 5 U.S.C. 552a, as amended by the Computer Matching Act of 1988 and 5 U.S.C. 552 (1988) as amended by the Freedom of Information Reform Act are processed under the Act that provides the greater degree of access. Inform the requester which instruction was used in granting or denying access.

(iv) Do not penalize the individual access to his or her records otherwise releasable under 5 U.S.C. 552a and periodic Chief of Naval Operations Notes (OPNAVNOTEs) 5211, “Current Privacy Act Issuances”, simply because he or she failed to cite the appropriate statute or instruction.

(12) Time limits. Acknowledge requests for access made under Privacy Act or this subpart and subpart G of this part within 10 working days after receipt, and advise the requester of your decision to grant/deny access within 30 working days.

(b) Reproduction fees. Normally, only one copy of any record or document will be provided. Checks or money orders for fees should be made payable to the Treasurer of the United States and deposited to the miscellaneous receipts of the treasury account maintained at the finance office servicing the activity.

(1) Fee schedules shall include only the direct cost of reproduction and shall not include costs of:

(i) Time or effort devoted to searching for or reviewing the record by naval personnel;

(ii) Fees not associated with the actual cost of reproduction;

(iii) Producing a copy when it must be provided to the individual without cost under another regulation, directive, or law;

(iv) Normal postage;

(v) Transportation of records or personnel; or

(vi) Producing a copy when the individual has requested only to review the record and has not requested a copy to keep, and the only means of allowing review is to make a copy (e.g., the record is stored in a computer and a copy must be printed to provide individual access, or the naval activity does not wish to surrender temporarily the original record for the individual to review).

(2) Fee schedules.

(i) Office copy (per page)............$.10

(ii) Microfiche (per fiche)............$.25

(3) Fee waivers. Waive fees automatically if the direct cost of reproduction is less than $15, unless the individual is seeking an obvious extension or duplication of a previous request for which he or she was granted a waiver. Decisions to waive or reduce fees that exceed $15 are made on a case-by-case basis.

(c) Denying individual access. (1) Deny the record subject access to requested record only if it was compiled in reasonable anticipation of a civil action or proceeding or is in a system of records that has been exempt from the access provisions of § 701.113.

(2) Deny the individual access only to those portions of the record for which the denial will serve a legitimate government purpose. An individual may be refused access for failure to comply with established procedural requirements, but must be told the specific reason for the refusal and the proper access procedures.

(3) Deny the individual access to his or her medical andpsychological records if it is determined that access could have an adverse affect on the mental or physical health of the individual. This determination normally should be made in consultation with a medical practitioner. If it is medically indicated that access could have an adverse mental or physical effect on the individual, provide the record to a medical practitioner named by the individual, along with an explanation of why access without medical supervision could be harmful to the individual. In any case, do not require the named medical practitioner to request the record for the individual. If, however, the individual refuses or fails to designate a medical practitioner, access shall be refused. The refusal is not considered a denial for reporting purposes under the Privacy Act.

(d) Notifying the individual. Written denial of access must be given to the individual. The denial letter shall include:

(1) The name, title, and signature of a designated denial authority;

(2) The date of the denial;

(3) The specific reason for the denial, citing the appropriatesubsections of 5 U.S.C. 552a or this subpart and subpart G of this part authorizing the denial;

(4) The individual's right to appeal the denial within 60 calendar days of the date the notice is mailed; and

(5) The title and address of the review authority.

§ 701.110 Amendment of records.

(a) Individual review and amendment. Encourage individuals to review periodically, the information maintained about them in systems of records, and to avail themselves of the amendment procedures established by this subpart and subpart G of this part.

(1) Right to amend. An individual may request to amend any record retrieved by his or her personal identifier from a system of records, unless the system has been exempt from the amendment procedures under this subpart. Amendments under this subpart and subpart G of this part are limited to correcting factual matters, not matters of opinion (i.e., information contained in evaluations of promotion potential or performance appraisals). When records sought to be amended are covered by another issuance, the administrative procedures under that issuance must be exhausted before using the Privacy Act. In other words, the Privacy Act may not be used to avoid the administrative procedures required by the issuance actually covering the records in question.

(2) In writing. Amendment requests shall be in writing, except for routine administrative changes, such as change of address.

(3) Content of amendment request. An amendment request must include a description of the information to be amended; the reason for the amendment; the type of amendment action sought (i.e., deletion, correction, or addition); and copies of available documentary evidence supporting the request.

(b) Burden of proof. The individual must provide adequate support for the request.

(c) Verifying identity. The individual may be required to provide identification to prevent the inadvertent or intentional amendment of another's record. Use the verification guidelines provided in § 701.109(a)(4).

(d) Limits on amending judicial and quasi-judicial evidence and findings. This subpart and subpart G of this part do not permit the alteration of evidence presented in the course of judicial or quasi-judicial proceedings. Amendments to such records must be made in accordance with procedures established for such proceedings. This subpart and subpart G of this part do not permit a collateral attack on a judicial or quasi-judicial finding; however, this subpart and subpart G of this part may be used to challenge the accuracy of recording the finding in a system of records.

(e) Standards for amendment request determinations. The record which the individual requests to be amended must meet the recordkeeping standards established in § 701.105. The record must be accurate, relevant, timely, complete, and necessary. If the record in its present state does not meet each of the criteria, grant the amendment request to the extent necessary to meet them.

(f) Time limits. Within 10 working days of receiving an amendment request, the systems manager shall provide the individual a written acknowledgement of the request. If action on the amendment request is completed within the 10 working days and the individual is so informed, no separate acknowledgment is necessary. The acknowledgment must clearly identify the request and advise the individual when to expect notification of the completed action. Only under exceptional circumstances should more than 30 working days be required to complete the action on an amendment request.

(g) Granting an amendment request in whole or in part—(1) Notify the requester. To the extent the amendment request is granted, the systems manager shall notify the individual and make the appropriate amendment.

(2) Notify previous recipients. Notify all previous recipients of the information (as reflected in the disclosure accounting record) that the amendment has been made and provide each a copy of the amended record. Recipients who are known to be no longer retaining the record need not be advised of the amendment. If it is known that other naval activities, DoD components, or Federal agencies have been provided the information that now requires amendment, or if the individual requests that these agencies be notified, provide the notification of amendment even if those activities or agencies are not listed on the disclosureaccounting form.

(h) Denying an amendment request in whole or in part. If theamendment request is denied in whole or in part, promptly notify the individual in writing. Include in the notification to the individual the following:

(1) Those sections of 5 U.S.C. 552a or this subpart and subpart G of this part upon which the denial is based;

(2) His or her right to appeal to the head of the activity for an independent review of the initial denial;

(3) The procedures for requesting an appeal, including the title and address of the official to whom the appeal should be sent; and

(4) Where the individual can receive assistance in filing theappeal.

(i) Requests for amending OPM records. The records in an OPMgovernment-wide system of records are only temporarily in the custody of naval activities. Requests for amendment of these records must be processed in accordance with OPM Regulations and the Federal Personnel Manual. The denial authority may deny a request, but all denials are subject to review by the Assistant Director for Workforce Information, Personnel Systems Oversight Group, Office of Personnel Management, 1900 E Street, NW, Washington, DC 20415.

(j) Individual's statement of disagreement. (1) If the reviewauthority refuses to amend the record as requested, the individual may submit a concise statement of disagreement listing the reasons for disagreeing with the refusal to amend.

(2) If possible, incorporate the statement of disagreement into the record. If that is not possible, annotate the record to reflect that the statement was filed and maintain the statement so that it can be readily obtained when the disputed information is used or disclosed.

(3) Furnish copies of the statement of disagreement to allindividuals listed on the disclosure accounting form (except those known to be no longer retaining the record), as well as to all other known holders of copies of the record.

(4) Whenever the disputed information is disclosed for any purpose, ensure that the statement of disagreement also is used or disclosed.

(k) Department of the Navy statement of reasons. (1) If theindividual files a statement of disagreement, the naval activity may file a statement of reasons containing a concise summary of the activity's reasons for denying the amendment request.

(2) The statement of reasons shall contain only those reasons given to the individual by the appellate official and shall not contain any comments on the individual's statement of disagreement.

(3) At the discretion of the naval activity, the statement ofreasons may be disclosed to those individuals, activities, and agencies that receive the statement of disagreement.

§ 701.111 Privacy Act appeals.

(a) How to file an appeal. The following guidelines shall befollowed by individuals wishing to appeal a denial of notification, access, or amendment of records.

(1) The appeal must be received by the cognizant review authority (i.e., ASN (MRA), NJAG, OGC, or OPM) within 60 calendar days of the date of the response.

(2) The appeal must be in writing and requesters should provide a copy of the denial letter and a statement of their reasons for seeking review.

(b) Time of receipt. The time limits for responding to an appeal commence when the appeal reaches the office of the review authority having jurisdiction over the record. Misdirected appeals should be referred expeditiously to the proper review authority.

(c) Review authorities. ASN (MRA), NJAG, and OGC are authorized to adjudicate appeals made to SECNAV. NJAG and OGC are further authorized to delegate this authority to a designated Assistant NJAG and the Principal Deputy General or Deputy General Counsel, respectively, under such terms and conditions as they deem appropriate.

(1) If the record is from a civilian Official Personnel Folder or is contained on any other OPM forms, send the appeal to the Assistant Director for Workforce Information, Personnel Systems and Oversight Group, Office of Personnel Management, 1900 E Street, NW, Washington, DC 20415. Records in all systems of records maintained in accordance with the OPM government-wide systems notices are only in the temporary custody of the Department of the Navy.

(2) If the record pertains to the employment of a present or former Navy and Marine Corps civilian employee, such as Navy or Marine Corps civilian personnel records or an employee's grievance or appeal file, to the General Counsel, Navy Department, 720 Kennon Street, SE, Washington Navy Yard, Building 36, Washington, DC 20374-5012.

(3) If the record pertains to a present or former military member's fitness reports or performance evaluations to the Assistant Secretary of the Navy (Manpower and Reserve Affairs), Navy Department, Washington, DC 20350-1000.

(d) Appeal procedures. (1) If the appeal is granted, the review authority shall advise the individual that his or her appeal has been granted and provide access to the record being sought.

(2) If the appeal is denied totally or in part, the appellateauthority shall advise the reason(s) for denying the appeal, citing the appropriate subsections of 5 U.S.C. 552a or this subpart and subpart G of this part that apply; the date of the appeal determination; the name, title, and signature of the appellate authority; and a statement informing the requester of his or her right to seek judicial relief in the Federal District Court.

(e) Final action, time limits and documentation. (1) The written appeal notification granting or denying access is the final naval activity action on the initial request for access.

(2) All appeals shall be processed within 30 working days ofreceipt, unless the appellate authority finds that an adequate review cannot be completed within that period. If additional time is needed, notify the applicant in writing, explaining the reason for the delay and when the appeal will be completed.

(f) Denial of appeal by activity's failure to act. An individual may consider his or her appeal denied if the appellate authority fails to:

(1) Take final action on the appeal within 30 working days ofreceipt when no extension of time notice was given; or

(2) Take final action within the period established by the notice to the appellate authority of the need for an extension of time to complete action on the appeal.

§ 701.112 Disclosure of records.

(a) Conditions of disclosure. (1) 5 U.S.C. 552a prohibits an agency from disclosing any record contained in a system of records to any person or agency, except when the record subject gives written consent for the disclosure or when one of the 12 conditions listed below in this subsection applies.

(2) Except for disclosures made under 5 U.S.C. 552 (1988) as amended by the Freedom of Information Reform Act of 1986 and Secretary of the Navy Instruction 5720.42F, “Department of the Navy Freedom of Information Act Program,” before disclosing any record from a system of records to any recipient other than a Federal agency, make reasonable efforts to ensure the record is accurate, relevant, timely, and complete for Department of the Navy purposes. Records discovered to have been improperly filed in the system of records should be removed before disclosure.

(i) If validation cannot be obtained from the record itself, the naval activity may contact the record subject (if reasonably available) to verify the accuracy, timeliness, completeness, and relevancy of the information.

(ii) If validation cannot be obtained from the record and the record subject is not reasonably available, advise the recipient that the information is believed to be valid as of a specific date and reveal any factors bearing on the validity of the information.

(b) Nonconsensual disclosures. 5 U.S.C. 552a provides 12 instances when a record in a system of records may be disclosed without the written consent of the record subject:

(1) Disclosures within the Department of Defense. For purposes of disclosing records, the Department of Defense is considered a single agency; hence, a record may be disclosed to any officer or employee in the Department of Defense (including private contractor personnel who are engaged to perform services needed in connection with the operation of a system of records for a DoD component), who have a need for the record in the performance of their duties, provided this use is compatible with the purpose for which the record is maintained. This provision is based on the “need to know” concept.

(i) For example, this may include disclosure to personnel managers, review boards, discipline officers, courts-martial personnel, medical officers, investigating officers, and representatives of the Judge Advocate General, Auditor General, Naval Inspector General, or the Naval Investigative Service, who require the information in order to discharge their official duties. Examples of personnel outside the Department of the Navy who may be included are: Personnel of the Joint Staff, Armed Forces Entrance and Examining Stations, Defense Investigative Service, or the other military departments, who require the information in order to discharge an official duty.

(ii) It may also include the transfer of records between navalcomponents and non-DoD agencies in connection with the PersonnelExchange Program (PEP) and interagency support agreements. Disclosure accountings are not required for intra-agency disclosure and disclosures made in connection with interagency support agreements or the PEP. Although some disclosures authorized by this paragraph might also meet the criteria for disclosure under other exceptions specified in the following paragraphs of this section, they should be treated under this paragraph for disclosure accounting purposes.

(2) Disclosures required by the FOIA. (i) A record must be disclosed if required by 5 U.S.C. 552 (1988) as amended by the Freedom of Information Reform Act of 1986, which is implemented by Secretary of the Navy Instruction 5720.42F, “Department of the Navy Freedom of Information Act Program.”

(ii) 5 U.S.C. 552 (1988) as amended by the Freedom of Information Reform Act of 1986 and Secretary of the Navy Instruction 5720.42F, “Department of the Navy Freedom of Information Act Program” require that records be made available to any person requesting them in writing, unless the record is exempt from disclosure under one of the nine FOIA exemptions. Therefore, if a record is not exempt from disclosure, it must be provided to the requester.

(iii) Certain records, such as personnel, medical, and similarfiles, are exempt from disclosure under exemption (b)(6) of 5 U.S.C. 552 (1988) as amended by the Freedom of Information Act Reform Act of 1986. Under that exemption, disclosure of information pertaining to an individual can be denied only when the disclosure would be a clearly unwarranted invasion of personal privacy. The first step is to determine whether a viable personal privacy interest exists in these records involving an identifiable living person. The second step is to consider how disclosure would benefit the general public in light of the content and context of the information in question. The third step is to determine whether the identified public interests qualify for consideration. The fourth step is to balance the personal privacy interests against the qualifying public interest. Numerous factors must be considered such as: The nature of the information to be disclosed (i.e., Do individuals normally have an expectation of privacy in the type of information to be disclosed?); importance of the public interest served by the disclosure and probability of further disclosure which may result in an unwarranted invasion of privacy; relationship of the requester to the public interest being served; newsworthiness of the individual to whom the information pertains (i.e., high ranking officer, public figure); degree of sensitivity of the information from the standpoint of the individual or the individual's family, and its potential for being misused to the harm, embarrassment, or inconvenience of the individual or the individual's family; the passage of time since the event which is the topic of the record (i.e., to disclose that an individual has been arrested and is being held for trial by court-martial is normally permitted, while to disclose an arrest which did not result in conviction might not be permitted after the passage of time); and the degree to which the information is already in the public domain or is already known by the particular requester.

(iv) Records or information from investigatory records, including personnel security investigatory records, are exempt from disclosure under the broader standard of “an unwarranted invasion of personal privacy” found in exemption (b)(7)(C) of 5 U.S.C. 552. This broader standard applies only to records or information compiled for law enforcement purposes.

(v) A disclosure under 5 U.S.C. 552 about military members must be in accordance with Secretary of the Navy Instruction 5720.42F, “Department of the Navy Freedom of Information Act Program”, but the following information normally may be disclosed from military personnel records (except for those personnel assigned to sensitive or routinely deployable units, or located in a foreign territory), without a clearly unwarranted invasion of personal privacy: Full name, rank, date of rank, base pay, past duty stations, present duty station and future duty station (if finalized), unless the stations have been determined by the Department of the Navy to be sensitive, routinely deployable, or located in a foreign territory, office or duty telephone number, source of commission, promotion sequence number, awards and decorations, attendance at professional military schools, and duty status at any given time.

(vi) The following information normally may be disclosed fromcivilian employee records about CONUS employees: Full name, present and past position titles and occupational series, present and past grades, present and past annual salary rates (including performance awards or bonuses, incentive awards, merit pay amount, Meritorious and Distinguished Executive Ranks, and allowances and differentials), past duty stations, present duty station and future duty station (if finalized), including room numbers, shop designations, or other identifying information regarding buildings or places of employment, unless the duty stations have been determined by the Department of the Navy to be sensitive, routinely deployable, or located in a foreign territory, position descriptions, identification of job elements, and those performance standards (but not actual performance appraisals) that the disclosure of which would not interfere with law enforcement programs or severely inhibit Department of the Navy effectiveness.

(viii) Disclosure of home addresses and home telephone numbersnormally is considered a clearly unwarranted invasion of personalprivacy and is prohibited. However, they may be disclosed if theindividual has consented to the disclosure; the disclosure is required by the FOIA; the disclosure is required by another law, such as 42 U.S.C. 653, which provides assistance to states in locating parents who have defaulted on child support payments, or the collection of alimony, and to state and local tax authorities for the purpose of enforcing tax laws. However, care must be taken prior to release to ensure that a written record is prepared to document the reasons for the release determination.

(A) When compiling home addresses and telephone numbers, theindividual may be offered the option of authorizing disclosure of the information without further consent for specific purposes, such as locator services. In that case, the information may be disclosed for the stated purpose without further consent. If the information is to be disclosed for any other purpose, a signed consent permitting the additional disclosure must be obtained from the individual.

(B) Before listing home addresses and telephone numbers inDepartment of the Navy telephone directories, give the individual the opportunity to refuse such a listing. If the individual requests that the home address or telephone number not be listed in the directory, do not assess any additional fee associated with maintaining an unlisted number for government-owned telephone services.

(C) The sale or rental of lists of names and addresses is prohibited unless such action is specifically authorized by Federal law. This does not prohibit the disclosure of names and addresses made under Secretary of the Navy Instruction 5720.42F, “Department of the Navy Freedom of Information Act Program.”

(D) In response to FOIA requests, information concerning special and general courts-martial results (e.g., records of trial) are releasable. However, information regarding summary courts-martial and non-judicial punishment are generally not releasable. The balancing of interests must be done. It is possible that in a particular case, information regarding non-judicial punishment should be disclosed pursuant to a FOIA request (i.e., the facts leading to a nonjudicial punishment are particularly newsworthy or the case involves a senior official abusing the public trust through office-related misconduct, such as embezzlement).Announcement of nonjudicial punishment dispositions under JAGMAN,subsection 0107, is a proper exercise of command authority and not a release of information under FOIA or this subpart and subpart G of this part. Exceptions to this policy must be coordinated with CNO (N09B30) or CMC (ARAD) prior to responding to requesters, including all requests for this type of information from members of Congress.

(3) Disclosures for established routine uses. (i) Records may be disclosed outside the Department of the Navy if the disclosure is for an established routine use.

(ii) A routine use shall:

(A) Be compatible with and related to the purpose for which the record was created;

(B) Identify the persons or organizations to whom the record may be disclosed;

(C) Identify specifically the uses for which the information may be employed by the receiving person or organization; and

(D) Have been published previously in the Federal Register.

(iii) A routine use shall be established for each user of theinformation outside the Department of the Navy who needs the information for an official purpose.

(iv) Routine uses may be established, discontinued, or amendedwithout the consent of the individuals to whom the records pertain. However, new and amended routine uses must be published in the Federal Register at least 30 days before the information may be disclosed under their provisions.

(v) In addition to the routine uses established by the Department of the Navy for each system of records, common “Blanket Routine Uses,” applicable to all record systems maintained with the Department of the Navy, have been established. These “Blanket Routine Uses” are published at the beginning of the Department of the Navy's Federal Register compilation of record systems notices rather than at each system notice and are also reflected in periodic Chief of Naval Operations Notes (OPNAVNOTEs) 5211, “Current Privacy Act Issuances.” Unless a system notice specifically excludes a system of records from a “Blanket Routine Use,” all “Blanket Routine Uses” apply to that system.

(vi) If the recipient has not been identified in the Federal Register or if the recipient, though identified, intends to employ the information for a purpose not published in the Federal Register, the written consent of the individual is required before the disclosure can be made.

(4) Disclosures to the Bureau of the Census. Records may bedisclosed to the Bureau of the Census for purposes of planning orcarrying out a census, survey, or related activities authorized by 13 U.S.C. 8.

(5) Disclosures for statistical research or reporting. Records may be disclosed to a recipient for statistical research or reporting if:

(i) Prior to the disclosure, the recipient has provided adequate written assurance that the records shall be used solely for statistical research or reporting; and

(ii) The records are transferred in a form that does not identify individuals.

(6) Disclosures to the National Archives and Records Administration.(i) Records may be disclosed to the National Archives and RecordsAdministration for evaluation to determine whether the records have sufficient historical or other value to warrant preservation by the Federal government. If preservation is warranted, the records will be retained by the National Archives and Record Administration, which becomes the official owner of the records.

(ii) Records may be disclosed to the National Archives and Records Administration to carry out records management inspections required by Federal law.

(iii) Records transferred to a Federal Records Center operated by the National Archives and Records Administration for storage are not within this category. Those records continue to be maintained and controlled by the transferring naval activity. The Federal Records Center is considered the agent of Department of the Navy and the disclosure is made under paragraph (b)(1) of this section.

(7) Disclosures when requested for law enforcement purposes. (i) A record may be disclosed to another agency or an instrumentality of any governmental jurisdiction within or under the control of the U.S. for a civil or criminal law enforcement activity if:

(A) The civil or criminal law enforcement activity is authorized by law (federal, state or local); and

(B) The head of the agency (or his or her designee) has made awritten request to the naval activity specifying the particular record or portion desired and the law enforcement purpose for which it is sought.

(ii) Blanket requests for any and all records pertaining to anindividual shall not be honored. The requesting agency must specify each record or portion desired and how each relates to the authorized law enforcement activity.

(iii) If a naval activity discloses a record outside the Department of Defense for law enforcement purposes without the individual's consent and without an adequate written request, the disclosure must be under an established routine use, such as the “Blanket Routine Use” for law enforcement.

(iv) Disclosure to foreign law enforcement agencies is not governed by the provisions of 5 U.S.C. 552a and this paragraph, but may be made only under established “Blanket Routine Uses,” routine uses published in the individual record system notice, or to other governing authority.

(8) Disclosure to protect the health or safety of an individual. Disclosure may be made under emergency conditions involving circumstances affecting the health and safety of an individual (i.e., when the time required to obtain the consent of the individual to whom the records pertain might result in a delay which could impair the health or safety of a person) provided notification of the disclosure is sent to the record subject. Sending the notification to the last known address is sufficient. In instances where information is requested by telephone, an attempt will be made to verify the inquirer's and medical facility's identities and the caller's telephone number. The requested information, if then considered appropriate and of an emergency nature, may be provided by return call.

(9) Disclosures to Congress. (i) A record may be disclosed to either House of Congress at the request of either the Senate or House of Representatives as a whole.

(ii) A record also may be disclosed to any committee, subcommittee, or joint committee of Congress if the disclosure pertains to a matter within the legislative or investigative jurisdiction of the committee, subcommittee, or joint committee.

(iii) Disclosure may not be made to a Member of Congress requesting in his or her individual capacity. However, for Members of Congress making inquiries on behalf of individuals who are subjects of records, a “Blanket Routine Use” has been established to permit disclosures to individual Members of Congress.

(A) When responding to a congressional inquiry made on behalf of a constituent by whose identifier the record is retrieved, there is no need to verify that the individual has authorized the disclosure to the Member of Congress.

(B) The oral or written statement of a Congressional staff member is sufficient to establish that a request has been received from the individual to whom the record pertains.

(C) If the constituent inquiry is made on behalf of an individual other than the record subject, provide the Member of Congress only that information releasable under 5 U.S.C. 552. Advise the Member of Congress that the written consent of the record subject is required before additional information may be disclosed. Do not contact the record subject to obtain consent for the disclosure to the Member of Congress unless the Congressional office specifically requests it be done.

(10) Disclosures to the Comptroller General for the GeneralAccounting Office (GAO). Records may be disclosed to the Comptroller General of the U.S., or authorized representative, in the course of the performance of the duties of the GAO.

(11) Disclosures under court orders. (i) Records may be disclosed under the order of a court of competent jurisdiction.

(ii) When a record is disclosed under this provision and thecompulsory legal process becomes a matter of public record, makereasonable efforts to notify the individual to whom the record pertains. Notification sent to the last known address of the individual is sufficient. If the order has not yet become a matter of public record, seek to be advised as to when it will become public. Neither the identity or the party to whom the disclosure was made nor the purpose of the disclosure shall be made available to the record subject unless the court order has become a matter of public record.

(iii) The court order must bear the signature of a federal, state, or local judge. Orders signed by court clerks or attorneys are not deemed to be orders of a court of competent jurisdiction. A photocopy of the order, regular on its face, will be sufficient evidence of the court's exercise of its authority of the minimal requirements of SECNAVINST 5820.8A,9 “Release of Official Information for Litigation Purposes and Testimony by Department of the Navy Personnel.”

(12) Disclosures to consumer reporting agencies. Certain information may be disclosed to consumer reporting agencies (i.e., credit reference companies such as TRW and Equifax, etc.) as defined by the Federal Claims Collection Act of 1966 (31 U.S.C. 952d). Under the provisions of that Act, the following information may be disclosed to a consumer reporting agency:

(i) Name, address, taxpayer identification number (SSN), and other information necessary to establish the identity of the individual;

(ii) The amount, status, and history of the claim; and

(iii) The agency or program under which the claim arose. 31 U.S.C. 952d specifically requires that the Federal Register notice for the system of records from which the information will be disclosed indicate that the information may be disclosed to a consumer reporting agency.

(c) Disclosures to commercial enterprises. Records may be disclosed to commercial enterprises only under the criteria established by Secretary of the Navy Instruction 5720.42F and 42 U.S.C. 653, Parent Locator Service for Enforcement of Child Support.

(1) Any information required to be disclosed by Secretary of the Navy Instruction 5720.42F and 42 U.S.C. 653, Parent Locator Service for Enforcement of Child Support may be disclosed to a requesting commercial enterprise.

(2) Commercial enterprises may present a consent statement signed by the individual indicating specific conditions for disclosing information from a record. Statements such as the following, if signed by the individual, are considered sufficient to authorize the disclosure: I hereby authorize the Department of the Navy to verify my SSN or other identifying information and to disclose my home address and telephone number to authorized representatives of (name of commercial enterprise) to be used in connection with my commercial dealings with that enterprise. All information furnished will be used in connection with my financial relationship with (name of commercial enterprise).

(3) When a consent statement as described in the precedingsubsection is presented, provide the information to the commercialenterprise, unless the disclosure is prohibited by another regulation or Federal law.

(4) Blanket consent statements that do not identify the Department of Defense or Department of the Navy, or that do not specify exactly the information to be disclosed, may be honored if it is clear that the individual, in signing the consent statement, was seeking a personal benefit (i.e., loan for a house or automobile) and was aware of the type of information necessary to obtain the benefit sought.

(5) Do not honor requests from commercial enterprises for official evaluations of personal characteristics such as personal financial habits.

(d) Disclosure of health care records to the public. This paragraph applies to disclosure of information to the news media and the public concerning individuals treated or hospitalized in Department of the Navy medical facilities and, when the cost of care is paid by the Department of the Navy, in non-Federal facilities.

(1) Disclosures without the individual's consent. Normally, the following information may be disclosed without the individual's consent:

(i) Information required to be released by Secretary of the Navy Instruction 5720.42F and OPM Regulations and the Federal Personnel Manual, as well as the information listed in paragraphs (b)(2)(v) (for military personnel) and (b)(2) of this section.

(ii) For civilian employees; and

(iii) General information concerning medical conditions, i.e., date of admission or disposition; present medical assessment of the individual's condition if the medical practitioner has volunteered the information, i.e., the individual's condition presently is (stable) (good) (fair) (serious) (critical), and the patient is (conscious) (semi-conscious) (unconscious).

(2) Disclosures with the individual's consent. With the individual's informed consent, any information about the individual may be disclosed. If the individual is a minor or has been declared incompetent by a court of competent jurisdiction, the parent of the minor or appointed legal guardian of the incompetent may give consent on behalf of the individual.

(e) Disclosure of Personal Information on Group/Bulk Orders. Do not use personal information including complete SSNs, home addresses and phone numbers, dates of birth, etc., on group/bulk orders. This personal information should not be posted on lists that everyone listed on the orders sees. Such a disclosure of personal information violates the Privacy Act and this subpart and subpart G of this part.

(f) Disclosure accounting. Keep an accurate record of alldisclosures made from a record (including those made with the consent of the individual) except those made to DoD personnelfor use in performing their official duties; and those made under the FOIA. Disclosure accounting is to permit the individual to determine what agencies or persons have been provided information from the record, enable Department of the Navy activities to advise prior recipients of the record of any subsequent amendments or statements of dispute concerning the record, and provide an audit trial of Department of the Navy's compliance with 5 U.S.C. 552a.

(1) Disclosure accountings shall contain the date of the disclosure; a description of the information disclosed; the purpose of the disclosure; and the name and address of the person or agency to whom the disclosure was made.

(2) The record subject has the right of access to the disclosure accounting except when the disclosure was made at the request of a civil or criminal law enforcement agency under paragraph (b)(7) of this section; or when the system of records has been exempted from the requirement to provide access to the disclosure accounting.

(g) Methods of disclosure accounting. Since the characteristics of various records maintained within the Department of the Navy vary widely, no uniform method for keeping disclosure accountings is prescribed. The primary criteria are that the selected method be one which will:

(1) Enable an individual to ascertain what persons or agencies have received disclosures pertaining to him/her;

(2) Provide a basis for informing recipients of subsequentamendments or statements of dispute concerning the record; and

(3) Provide a means to prove, if necessary that the activity has complied with the requirements of 5 U.S.C. 552a and this subpart and subpart G of this part.

(h) Retention of disclosure accounting. Maintain a disclosureaccounting of the life of the record to which the disclosure pertains, or 5 years after the date of the disclosure, whichever is longer. Disclosure accounting records are normally maintained with the record, as this will ensure compliance with paragraph (f) of this section.

§ 701.113 Exemptions.

(a) Using exemptions. No system of records is automatically exempt from all provisions of 5 U.S.C. 552a. A system of records is exempt from only those provisions of 5 U.S.C. 552a that are identified specifically in the exemption rule for the system. Subpart G of this part contains the systems designated as exempt, the types of exemptions claimed, the authority and reasons for invoking the exemptions and the provisions of 5 U.S.C. 552a from which each system has been exempt. Exemptions are discretionary on the part of Department of the Navy and are not effective until published as a final rule in the Federal Register. The naval activity maintaining the system of records shall make a determination that the system is one for which an exemption may be established and then propose an exemption rule for the system. Submit the proposal to CNO (N09B30) for approval and publication in the Federal Register.

(b) Types of exemptions. There are two types of exemptions permitted by 5 U.S.C. 552a.

(1) General exemptions. Those that authorize the exemption of a system of records from all but specifically identified provisions of 5 U.S.C. 552a.

(2) Specific exemptions. Those that allow a system of records to be exempt from only a few designated provisions of 5 U.S.C. 552a.

(c) Establishing exemptions. (1) 5 U.S.C. 552a authorizes theSecretary of the Navy to adopt rules designating eligible systems of records as exempt from certain requirements. The Secretary of the Navy has delegated the CNO (N09B30) to make a determination that the system is one for which an exemption may be established and then propose and establish an exemption rule for the system. No system of records within Department of the Navy shall be considered exempt until the CNO (N09B30) has approved the exemption and an exemption rule has been published as a final rule in the Federal Register. A system of records is exempt from only those provisions of 5 U.S.C. 552a that are identified specifically in the Department of the Navy exemption rule for the system.

(2) No exemption may be established for a system of records until the system itself has been established by publishing a notice in the Federal Register, at least 30 days prior to the effective date, describing the system. This allows interested persons an opportunity to comment. An exemption may not be used to deny an individual access to information that he or she can obtain under Secretary of the Navy Instruction 5720.42F, “Department of the Navy Freedom of Information Act Program.”

(d) Exemption for classified material. All systems of recordsmaintained by the Department of the Navy shall be exempt under section (k)(1) of 5 U.S.C. 552a, to the extent that the systems contains any information properly classified under E.O. 12958 and that is required by that E.O. to be kept secret in the interest of national defense or foreign policy. This exemption is applicable to parts of all systems of records including those not otherwise specifically designated for exemptions herein which contain isolated items of properly classified information.

Note:

Department of the Navy Privacy Act systems of records which contain classified information automatically qualify for a (k)(1) exemption, without establishing an exemption rule.

(e) Exempt records in nonexempt systems. (1) An exemption ruleapplies to the system of records for which it was established. If a record from an exempt system is incorporated intentionally into a system that has not been exempt, the published notice and rules for the nonexempt system will apply to the record and it will not be exempt from any provisions of 5 U.S.C. 552a.

(2) A record from one component's (i.e., Department of the Navy) exempted system that is temporarily in the possession of another component (i.e., Army) remains subject to the published system notice and rules of the originating component's (i.e., Department of the Navy). However, if the non-originating component incorporates the record into its own system of records, the published notice and rules for the system into which it is incorporated shall apply. If that system of records has not been exempted, the record shall not be exempt from any provisions of5 U.S.C. 552a.

(3) A record accidentally misfiled into a system of records isgoverned by the published notice and rules for the system of records in which it actually should have been filed.

(f) General exemptions—(1)Central Intelligence Agency (CIA). The Department of the Navy is not authorized to establish an exemption for records maintained by the CIA under subsection (j)(1) of 5 U.S.C. 552a.

(2) Law enforcement. (i) The general exemption provided bysubsection (j)(2) of 5 U.S.C. 552a may be established to protectcriminal law enforcement records maintained by Department of the Navy.

(ii) To be eligible for the (j)(2) exemption, the system of records must be maintained by an element that performs, as one of its principal functions, the enforcement of criminal laws. The Naval Investigative Service, Naval Inspector General, and military police activities qualify for this exemption.

(iii) Criminal law enforcement includes police efforts to detect, prevent, control, or reduce crime, or to apprehend criminals, and the activities of prosecution, court, correctional, probation, pardon, or parole authorities.

(iv) Information that may be protected under the (j)(2) exemption includes:

(A) Information compiled for the purpose of identifying criminal offenders and alleged criminal offenders consisting of only identifying data and notations of arrests; the nature and disposition of criminal charges; and sentencing, confinement, release, parole, and probation status;

(B) Information compiled for the purpose of a criminalinvestigation, including reports of informants and investigators, and associated with an identifiable individual; and

(C) Reports identifiable to an individual, compiled at any stage of the enforcement process, from arrest, apprehension, indictment, or preferral of charges through final release from the supervision that resulted from the commission of a crime.

(v) The (j)(2) exemption does not apply to:

(A) Investigative records maintained by a naval activity having no criminal law enforcement duties as one of its principle functions, or

(B) Investigative records compiled by any element concerningindividual's suitability, eligibility, or qualification for duty,employment, or access to classified information, regardless of theprinciple functions of the naval activity that compiled them.

(vi) The (j)(2) exemption established for a system of recordsmaintained by a criminal law enforcement activity cannot protect law enforcement records incorporated into a nonexempt system of records or any system of records maintained by an activity not principally tasked with enforcing criminal laws. All system managers, therefore, are cautioned to comply strictly with Department of the Navy regulations or instructions prohibiting or limiting the incorporation of criminal law enforcement records into systems other than those maintained by criminallaw enforcement activities.

(g) Specific exemptions. Specific exemptions permit certaincategories of records to be exempted from specific provisions of 5U.S.C. 552a. Subsections (k)(1)-(k)(7) of 5 U.S.C. 552a allow exemptions for seven categories of records. To be eligible for a specific exemption, the record must meet the corresponding criteria.

Note:

Department of the Navy Privacy Act systems of records which contain classified information automatically qualify for a (k)(1) exemption, without an established exemption rule.

(1) (k)(1) exemption: Information properly classified underSecretary of the Navy Instruction 5720.42F, “Department of the Navy Freedom of Information Act Program” and E.O. 12958, in the interest of national defense or foreign policy.

(2) (k)(2) exemption: Investigatory information (other than that information within the scope of paragraph (f)(2) of this section) compiled for law enforcement purposes. If maintaining the information causes an individual to be ineligible for or denied any right, benefit, or privilege that he or she would otherwise be eligible for or entitled to under Federal law, then he or she shall be given access to the information, except for the information that would identify a confidential source (see paragraph (h) of this section, “confidential source”). The (k)(2) exemption, when established, allows limited protection on investigative records maintained for use in personnel and administrativeactions.

(3) (k)(3) exemption: Records maintained in connection withproviding protective services to the President of the United States and other individuals under 18 U.S.C. 3056.

(4) (k)(4) exemption: Records required by Federal law to bemaintained and used solely as statistical records that are not used to make any determination about an identifiable individual, except as provided by 13 U.S.C. 8.

(5) (k)(5) exemption: Investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, military service, Federal contracts, or access to classified information, but only to the extent such material would reveal the identity of a confidential source (see paragraph (h) of this section, “confidential source”). This exemption allows protection of confidential sources in background investigations, employment inquiries, and similar inquiries used in personnel screening to determine suitability, eligibility, or qualifications.

(6) (k)(6) exemption: Testing or examination material used solely to determine individual qualifications for appointment or promotion in the Federal or military service if the disclosure would compromise theobjectivity or fairness of the testing or examination process.

(7) (k)(7) exemption: Evaluation material used to determinepotential for promotion in the military services, but only to the extent that disclosure would reveal the identity of a confidential source (see paragraph (h) of this section, “confidential source”.)

(h) Confidential source. Promises of confidentiality are to be given on a limited basis and only when essential to obtain the information sought. Establish appropriate procedures for granting confidentiality and designate those categories of individuals authorized to make such promises.

§ 701.114 Enforcement actions.

(a) Administrative remedies. An individual who alleges he or she has been affected adversely by a naval activity's violation of 5 U.S.C. 552a or this subpart and subpart G of this part shall be permitted to seek relief from SECNAV through proper administrative channels.

(b) Civil court actions. After exhausting all administrativeremedies, an individual may file suit in Federal court against a naval activity for any of the following acts:

(1) Denial of an amendment request. The activity head, or his or her designee wrongfully refuses the individual's request for review of the initial denial of an amendment or, after review, wrongfully refuses to amend the record;

(2) Denial of access. The activity wrongfully refuses to allow the individual to review the record or wrongfully denies his or her request for a copy of the record;

(3) Failure to meet recordkeeping standards. The activity fails to maintain an individual's record with the accuracy, relevance, timeliness, and completeness necessary to assure fairness in any determination about the individual's rights, benefits, or privileges and, in fact, makes an adverse determination based on the record; or

(4) Failure to comply with Privacy Act. The activity fails to comply with any other provision of 5 U.S.C. 552a or any rule or regulation promulgated under 5 U.S.C. 552a and thereby causes the individual to be adversely affected.

(c) Criminal penalties. Subsection (i)(1) of 5 U.S.C. 552aauthorizes three criminal penalties against individuals for violations of its provisions. All three are misdemeanors punishable by fines of $5,000.

(1) Wrongful disclosure. Any member or employee of Department of the Navy who, by virtue of his or her employment or position, has possession of or access to records and willfully makes a disclosure knowing that disclosure is in violation of 5 U.S.C. 552a or this subpart and subpart G of this part.

(2) Maintaining unauthorized records. Any member or employee of Department of the Navy who willfully maintains a system of records for which a notice has not been published under periodic Chief of Naval Operations Notes (OPNAVNOTEs) 5211, “Current Privacy Act Issuances.”

(a) General. 5 U.S.C. 552a and this subpart and subpart G of this part are applicable to certain types of computer matching, i.e., the computer comparison of automated systems of records. There are two specific kinds of matching programs that are fully governed by 5 U.S.C. 552a and this subpart and subpart G of this part:

(1) Matches using records from Federal personnel or payroll systems of records;

(2) Matches involving Federal benefit programs to accomplish one ormore of the following purposes:

(i) To determine eligibility for a Federal benefit.

(ii) To comply with benefit program requirements.

(iii) To effect recovery of improper payments or delinquent debts from current or former beneficiaries.

(b) The record comparison must be a computerized one. Manualcomparisons are not covered, involving records from two or moreautomated systems of records (i.e., systems of records maintained by Federal agencies that are subject to 5 U.S.C. 552a); or a Department ofthe Navy automated systems of records and automated records maintainedby a non-Federal agency (i.e., State or local government or agentthereof). A covered computer matching program entails not only theactual computerized comparison, but also preparing and executing awritten agreement between the participants, securing approval of theDefense Data Integrity Board, publishing a matching notice in the Federal Register before the match begins, ensuring that investigationand due process are completed, and taking ultimate action, if any.

Subpart G—Privacy Act ExemptionsAuthority:

Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).

Source:

65 FR 31471, May 18, 2000, unless otherwise noted.

§ 701.116 Purpose.

Subparts F and G of this part contain rules promulgated by theSecretary of the Navy, pursuant to 5 U.S.C. 552a (j) and (k), andsubpart F, § 701.113, to exempt certain systems of Department of the Navy records from specified provisions of 5 U.S.C. 552a.

§ 701.117 Exemption for classified records.

All systems of records maintained by the Department of the Navy shall be exempt from the requirements of the access provision of the Privacy Act (5 U.S.C. 552a(d)) under the (k)(1) exemption, to the extent that the system contains information properly classified under E.O. 12958 and that is required by that E.O. to be kept secret in the interest of national defense or foreign policy. This exemption is applicable to parts of all systems of records including those not otherwise specifically designated for exemptions herein which contain isolated items of properly classified information.

§ 701.118Exemptions for specific Navy record systems.

(a) System identifier and name:

(1) N01070-9, White House Support Program.

(2) Exemption: (i) Information specifically authorized to be classified under E.O. 12958, as implemented by DoD 5200.1-R, may be exempt pursuant to 5 U.S.C. 552a(k)(1).

(ii) Investigatory material compiled for law enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual is denied any right, privilege, or benefit for which he would otherwise be entitled by Federal law or for which he would otherwise be eligible, as a result of the maintenance of such information, the individual will be provided access to such information except to the extent that disclosure would reveal the identity of a confidential source.

(iii) Records maintained in connection with providing protective services to the President and other individuals under 18 U.S.C. 3506, may be exempt pursuant to 5 U.S.C. 552a(k)(3).

(iv) Investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for federal civilian employment, military service, federal contracts, or access to classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), but only to the extent that such material would reveal the identity of a confidential source.

(v) Portions of this system of records are exempt from the following subsections of the Privacy Act: (c)(3), (d), (e)(1), (e)(4) (G) through (I), and (f).

(3) Authority: 5 U.S.C. 552a(k)(1), (k)(2), (k)(3), and (k)(5).

(4) Reasons: (i) Exempted portions of this system contain information which has been properly classified under E.O. 12958, and which is required to be kept secret in the interest of national defense or foreign policy. Exempted portions of this system may also contain information considered relevant and necessary to make a determination as to qualifications, eligibility, or suitability for access to classified information, and which was obtained by providing an express or implied promise to the source that his or her identity would not be revealed to the subject of the record. Exempted portions of this system may also contain information collected and maintained in connection with providing protective services to the President and other individuals protected pursuant to 18 U.S.C. 3056. Exempted portions of this system may also contain investigative records compiled for law enforcement purposes, the disclosure of which could reveal the identity of sources who provide information under an express or implied promise of confidentiality, compromise investigative techniques and procedures, jeopardize the life or physical safety of law-enforcement personnel, or otherwise interfere with enforcement proceedings or adjudications.

(ii) [Reserved]

(b) System identifier and name:

(1) N01131-1, Officer Selection and Appointment System.

(2) Exemption: (i) Information specifically authorized to be classified under E.O. 12958, as implemented by DoD 5200.1-R, may be exempt pursuant to 5 U.S.C. 552a(k)(1).

(ii) Investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for federal civilian employment, military service, federal contracts, or access to classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), but only to the extent that such material would reveal the identity of a confidential source.

(iii) Testing or examination material used solely to determine individual qualifications for appointment or promotion in the Federal service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure would compromise the objectivity or fairness of the test or examination process.

(iv) Evaluation material used to determine potential for promotion in the Military Services may be exempt pursuant to 5 U.S.C. 552a(k)(7), but only to the extent that the disclosure of such material would reveal the identity of a confidential source.

(v) Portions of this system of records are exempt from the following subsections of the Privacy Act: (c)(3), (d), (e)(1), (e)(4)(G) through (I), and (f).

(3) Authority: 5 U.S.C. 552a(k)(1), (k)(5), (k)(6), and (k)(7).

(4) Reasons: (i) Granting individuals access to portions of this system of records could result in the disclosure of classified material, or the identification of sources who provided information to the government under an express or implied promise of confidentiality. Material will be screened to permit access to unclassified material and to information that does not disclose the identity of a confidential source.

(ii) [Reserved]

(c) System identifier and name:

(1) N01133-2, Recruiting Enlisted Selection System.

(2) Exemption: (i) Information specifically authorized to be classified under E.O. 12958, as implemented by DoD 5200.1-R, may be exempt pursuant to 5 U.S.C. 552a(k)(1).

(ii) Investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for federal civilian employment, military service, federal contracts, or access to classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), but only to the extent that such material would reveal the identity of a confidential source.

(iii) Testing or examination material used solely to determine individual qualifications for appointment or promotion in the Federal service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure would compromise the objectivity or fairness of the test or examination process.

(iv) Evaluation material used to determine potential for promotion in the Military Services may be exempt pursuant to 5 U.S.C. 552a(k)(7), but only to the extent that the disclosure of such material would reveal the identity of a confidential source.

(v) Portions of this system of records are exempt from the following subsections of the Privacy Act: (c)(3), (d), (e)(1), (e)(4)(G) through (I), and (f).

(3) Authority: 5 U.S.C. 552a(k)(1), (k)(5), (k)(6), and (k)(7).

(4) Reasons: Granting individuals access to portions of this system of records could result in the disclosure of classified material, or the identification of sources who provided information to the government under an express or implied promise of confidentiality. Material will be screened to permit access to unclassified material and to information that does not disclose the identity of a confidential source.

(d) System identifier and name:

(1) N01640-1, Individual Correctional Records.

(2) Exemption: (i) Parts of this system may be exempt pursuant to 5 U.S.C. 552a(j)(2) if the information is compiled and maintained by a component of the agency which performs as its principle function any activity pertaining to the enforcement of criminal laws.

(ii) Portions of this system of records are exempt from the following subsections of the Privacy Act: (c)(3), (c)(4), (d), (e)(2), (e)(3), (e)(4)(G) through (I), (e)(5), (e)(8), (f), and (g).

(3) Authority: 5 U.S.C. 552a(j)(2).

(4) Reason: (i) Granting individuals access to portions of these records pertaining to or consisting of, but not limited to, disciplinary reports, criminal investigations, and related statements of witnesses, and such other related matter in conjunction with the enforcement of criminal laws, could interfere with the orderly investigations, with the orderly administration of justice, and possibly enable suspects to avoid detection or apprehension. Disclosure of this information could result in the concealment, destruction, or fabrication of evidence, and jeopardize the safety and well-being of informants, witnesses and their families, and law enforcement personnel and their families. Disclosure of this information could also reveal and render ineffectual investigative techniques, sources, and methods used by these components and could result in the invasion of the privacy of individuals only incidentally related to an investigation. The exemption of the individual's right of access to portions of these records, and the reasons therefor, necessitate the exemption of this system of records from the requirement of the other cited provisions.

(ii) [Reserved]

(e) System identifier and name:

(1) N01754-3, Navy Child Development Services Program.

(2) Exemption: (i) Investigatory material compiled for law enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual is denied any right, privilege, or benefit for which he would otherwise be entitled by Federal law or for which he would otherwise be eligible, as a result of the maintenance of such information, the individual will be provided access to such information except to the extent that disclosure would reveal the identity of a confidential source.

(ii) Portions of this system of records are exempt from the following subsections of the Privacy Act: (c)(3) and (d).

(3) Authority: 5 U.S.C. 552a(k)(2).

(4) Reasons: (i) Exemption is needed in order to encourage persons having knowledge of abusive or neglectful acts toward children to report such information, and to protect such sources from embarrassment or recrimination, as well as to protect their right to privacy. It is essential that the identities of all individuals who furnish information under an express promise of confidentiality be protected. Additionally, granting individuals access to information relating to criminal and civil law enforcement, as well as the release of certain disclosure accountings, could interfere with ongoing investigations and the orderly administration of justice, in that it could result in the concealment, alteration, destruction, or fabrication of information; could hamper the identification of offenders and the disposition of charges; and could jeopardize the safety and well being of parents and their children.

(ii) [Reserved]

(f) System identifier and name:

(1) N03834-1, Special Intelligence Personnel Access File.

(2) Exemption: (i) Information specifically authorized to be classified under E.O. 12958, as implemented by DoD 5200.1-R, may be exempt pursuant to 5 U.S.C. 552a(k)(1).

(ii) Investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for federal civilian employment, military service, federal contracts, or access to classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), but only to the extent that such material would reveal the identity of a confidential source.

(iii) Portions of this system of records are exempt from the following subsections of the Privacy Act: (c)(3), (d), (e)(1), (e)(4) (G) through (I), and (f).

(3) Authority: 5 U.S.C. 552a(k)(1) and (k)(5).

(4) Reasons: (i) Exempted portions of this system contain information that has been properly classified under E.O. 12356, and that is required to be kept secret in the interest of national defense or foreign policy.

(ii) Exempted portions of this system also contain information considered relevant and necessary to make a determination as to qualifications, eligibility, or suitability for access to classified information and was obtained by providing an express or implied assurance to the source that his or her identity would not be revealed to the subject of the record.

(g) System identifier and name:

(1) N04060-1, Navy and Marine Corps Exchange Security Files.

(2) Exemption: (i) Investigatory material compiled for law enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual is denied any right, privilege, or benefit for which he would otherwise be entitled by Federal law or for which he would otherwise be eligible, as a result of the maintenance of such information, the individual will be provided access to such information except to the extent that disclosure would reveal the identity of a confidential source.

(ii) Portions of this system of records are exempt from the following subsections of the Privacy Act: (c)(3), (d), (e)(4) (G) through (I), and (f).

(3) Authority: 5 U.S.C. 552a(k)(2).

(4) Reasons: (i) Granting individuals access to information collected and maintained by these activities relating to the enforcement of criminal laws could interfere with orderly investigations, with orderly administration of justice, and possibly enable suspects to avoid detection or apprehension. Disclosure of this information could result in the concealment, destruction, or fabrication of evidence, and could also reveal and render ineffectual investigative techniques, sources, and methods used by these activities.

(h) [Reserved]

(i) System identifier and name:

(1) N05041-1, Inspector General (IG) Records.

(2) Exemption: (i) Information specifically authorized to be classified under E.O. 12958, as implemented by DoD 5200.1-R, may be exempt pursuant to 5 U.S.C. 552a(k)(1).

(ii) Investigatory material compiled for law enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual is denied any right, privilege, or benefit for which he would otherwise be entitled by Federal law or for which he would otherwise be eligible, as a result of the maintenance of such information, the individual will be provided access to such information except to the extent that disclosure would reveal the identity of a confidential source.

(iii) Portions of this system of records may be exempt from the provisions of 5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G), (H), and (I); and (f).

(3) Authority: 5 U.S.C. 552a(k)(1) and (k)(2).

(4) Reasons: (i) From subsection (c)(3) because the release of the disclosure accounting would permit individuals to obtain valuable information concerning the nature of the investigation and would present a serious impediment to the orderly conduct of any investigative activities. Such accounting could result in the release of properly classified information which would compromise the national defense or disrupt foreign policy.

(ii) From subsections (d) and (f) because access to the records would inform individuals of the existence and nature of the investigation; provide information that might result in the concealment, destruction, or fabrication of evidence; possibly jeopardize the safety and well-being of informants, witnesses and their families; likely reveal and render ineffectual investigatory techniques and methods and sources of information; and possibly result in the invasion of the personal privacy of third parties. Access could result in the release of properly classified information which could compromise the national defense or disrupt foreign policy. Amendment of the records would interfere with the ongoing investigation and impose an impossible administrative burden by requiring investigations to be continually reinvestigated.

(iii) From subsection (e)(1) because in the course of theinvestigation it is not always possible, at least in the early stages of the inquiry, to determine relevance and or necessity as such determinations may only occur after the information has been evaluated. Information may be obtained concerning the actual or potential violation of laws or regulations other than those relating to the ongoing investigation. Such information should be retained as it can aid in establishing patterns of improper activity and can provide valuable leads in the conduct of other investigations.

(iv) From subsection (e)(4)(G) and (H) because this system ofrecords is exempt from individual access pursuant to subsections (k)(1) and (k)(2) of the Privacy Act of 1974.

(v) From subsection (e)(4)(I) because it is necessary to protect the confidentiality of sources and to protect the privacy and physical safety of witnesses. Although the system is exempt from this requirement, the Department of the Navy has published a notice in broad, generic terms in the belief that this is all that subsection (e)(4)(I) of the Act requires.

(j) System identifier and name:

(1) N05300-3, Faculty Professional Files.

(2) Exemption: (i) Investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for federal civilian employment, military service, federal contracts, or access to classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), but only to the extent that such material would reveal the identity of a confidential source.

(ii) Portions of this system of records are exempt from the following subsections of the Privacy Act: (c)(3), (d), (e)(4) (G) and (H), and (f).

(3) Authority: 5 U.S.C. 552a(k)(5).

(4) Reasons: Exempted portions of this system contain information considered relevant and necessary to make a release determination as to qualifications, eligibility, or suitability for Federal employment, and was obtained by providing an express or implied promise to the source that his or her identity would not be revealed to the subject of the record.

(k) System identifier and name:

(1) N05354-1, Equal Opportunity Information Management System.

(2) Exemption: (i) Information specifically authorized to be classified under E.O. 12958, as implemented by DoD 5200.1-R, may be exempt pursuant to 5 U.S.C. 552a(k)(1).

(ii) Investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for federal civilian employment, military service, federal contracts, or access to classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), but only to the extent that such material would reveal the identity of a confidential source.

(iii) Portions of this system of records are exempt from the following subsections of the Privacy Act: (c)(3), (d), (e)(4)(G) through (I), and (f).

(3) Authority: 5 U.S.C. 552a(k)(1) and (k)(5).

(4) Reasons: Granting access to information in this system of records could result in the disclosure of classified material, or reveal the identity of a source who furnished information to the Government under an express or implied promise of confidentiality. Material will be screened to permit access to unclassified material and to information that will not disclose the identity of a confidential source.

(l) System identifier and name:

(1) N05520-1, Personnel Security Eligibility Information System.

(2) Exemption: (i) Information specifically authorized to be classified under E.O. 12958, as implemented by DoD 5200.1-R, may be exempt pursuant to 5 U.S.C. 552a(k)(1).

(ii) Investigatory material compiled for law enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual is denied any right, privilege, or benefit for which he would otherwise be entitled by Federal law or for which he would otherwise be eligible, as a result of the maintenance of such information, the individual will be provided access to such information except to the extent that disclosure would reveal the identity of a confidential source.

(iii) Investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for federal civilian employment, military service, federal contracts, or access to classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), but only to the extent that such material would reveal the identity of a confidential source.

(iv) Evaluation material used to determine potential for promotion in the Military Services may be exempt pursuant to 5 U.S.C. 552a(k)(7), but only to the extent that the disclosure of such material would reveal the identity of a confidential source.

(v) Portions of this system of records are exempt from the following subsections of the Privacy Act: (c)(3), (d), (e)(4)(G) and (I), and (f).

(3) Authority: 5 U.S.C. 552a(k)(1), (k)(2), (k)(5), and (k)(7).

(4) Reasons: Granting individuals access to information collected and maintained in this system of records could interfere with orderly investigations; result in the disclosure of classified material; jeopardize the safety of informants, witnesses, and their families; disclose investigative techniques; and result in the invasion of privacy of individuals only incidentally related to an investigation. Material will be screened to permit access to unclassified information that will not disclose the identity of sources who provide the information to the government under an express or implied promise of confidentiality.

(m) System identifier and name:

(1) N05520-4, NCIS Investigative Files System.

(2) Exemption: (i) Parts of this system may be exempt pursuant to 5 U.S.C. 552a(j)(2) if the information is compiled and maintained by a component of the agency which performs as its principle function any activity pertaining to the enforcement of criminal laws.

(ii) Portions of this system of records are exempt from the following subsections of the Privacy Act: (c)(3), (c)(4), (d), (e)(2), (e)(3), (e)(4)(G) through (I), (e)(5), (e)(8), (f), and (g).

(3) Authority: 5 U.S.C. 552a(j)(2).

(4) Reason:

(i) Granting individuals access to information collected and maintained by this activity relating to the enforcement of criminal laws could interfere with the orderly investigations, with the orderly administration of justice, and possibly enable suspects to avoid detection or apprehension. Disclosure of this information could result in the concealment, destruction, or fabrication of evidence, and jeopardize the safety and well-being of informants, witnesses and their families, and law enforcement personnel and their families. Disclosure of this information could also reveal and render ineffectual investigative techniques, sources, and methods used by these components and could result in the invasion of the privacy of individuals only incidentally related to an investigation. The exemption of the individual's right of access to portions of these records, and the reasons therefor, necessitate the exemption of this system of records from the requirement of the other cited provisions.

(ii) [Reserved]

(5) Exemption:

(i) Information specifically authorized to be classified under E.O. 12958, as implemented by DoD 5200.1-R, may be exempt pursuant to 5 U.S.C. 552a(k)(1).

(ii) Records maintained in connection with providing protective services to the President and other individuals under 18 U.S.C. 3506, may be exempt pursuant to 5 U.S.C. 552a(k)(3).

(iii) Records maintained solely for statistical research or program evaluation purposes and which are not used to make decisions on the rights, benefits, or entitlement of an individual except for census records which may be disclosed under 13 U.S.C. 8, may be exempt pursuant to 5 U.S.C. 552a(k)(4).

(iv) Investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for federal civilian employment, military service, federal contracts, or access to classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), but only to the extent that such material would reveal the identity of a confidential source.

(v) Testing or examination material used solely to determine individual qualifications for appointment or promotion in the Federal service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure would compromise the objectivity or fairness of the test or examination process.

(vi) Portions of this system of records are exempt from the following subsections of the Privacy Act: (c)(3), (d), (e)(1), (e)(4)(G) through (I), and (f).

(i) The release of disclosure accountings would permit the subject of an investigation to obtain valuable information concerning the nature of that investigation, and the information contained, or the identity of witnesses or informants, would therefor present a serious impediment to law enforcement. In addition, disclosure of the accounting would amount to notice to the individual of the existence of a record.

(ii) Access to the records contained in this system would inform the subject of the existence of material compiled for law enforcement purposes, the premature release of which could prevent the successful completion of investigation, and lead to the improper influencing of witnesses, the destruction of records, or the fabrication of testimony. Exempt portions of this system also contain information that has been properly classified under E.O. 12958, and that is required to be kept secret in the interest of national defense or foreign policy.

(iii) Exempt portions of this system also contain information considered relevant and necessary to make a determination as to qualifications, eligibility, or suitability for Federal civilian employment, military service, Federal contracts, or access to classified information, and was obtained by providing an express or implied assurance to the source that his or her identity would not be revealed to the subject of the record.

(iv) The notice of this system of records published in the Federal Register sets forth the basic statutory or related authority for maintenance of the system.

(v) The categories of sources of records in this system have beenpublished in the Federal Register in broad generic terms. The identity of specific sources, however, must be withheld in order to protect the confidentiality of the source, of criminal and other law enforcement information. This exemption is further necessary to protect the privacy and physical safety of witnesses and informants.

(vi) This system of records is exempted from procedures for notice to an individual as to the existence of records pertaining to him/her dealing with an actual or potential civil or regulatory investigation, because such notice to an individual would be detrimental to the successful conduct and/or completion of an investigation, pending or future. Mere notice of the fact of an investigation could inform the subject or others that their activities are under, or may become the subject of, an investigation. This could enable the subjects to avoid detection, to influence witnesses improperly, to destroy records, or to fabricate testimony.

(vii) Exempt portions of this system containing screening board reports.

(viii) Screening board reports set forth the results of oral examination of applicants for a position as a special agent with the Naval Investigation Service Command. Disclosure of these records would reveal the areas pursued in the course of the examination and thus adversely affect the result of the selection process. Equally important, the records contain the candid views of the members composing the board. Release of the records could affect the willingness of the members to provide candid opinions and thus diminish the effectiveness of a program which is essential to maintaining the high standard of the Special Agent Corps., i.e., those records constituting examination material used solely to determine individual qualifications for appointment in the Federal service.

(n) System identifier and name:

(1) N05520-5, Personnel Security Program Management Records System.

(2) Exemption:

(i) Information specifically authorized to be classified under E.O. 12958, as implemented by DoD 5200.1-R, may be exempt pursuant to 5 U.S.C. 552a(k)(1).

(ii) Investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for federal civilian employment, military service, federal contracts, or access to classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), but only to the extent that such material would reveal the identity of a confidential source.

(iii) Portions of this system of records are exempt from the following subsections of 5 U.S.C. 552a: (d)(1-5).

(3) Authority: 5 U.S.C. 552a(k)(1) and (k)(5).

(4) Reasons:

(i) Granting individuals access to information collected and maintained in this system of records could result in the disclosure of classified material; and jeopardize the safety of informants, and their families. Further, the integrity of the system must be ensured so that complete and accurate records of all adjudications are maintained. Amendment could cause alteration of the record of adjudication.

(ii) [Reserved]

(o) System identifier and name:

(1) N05527-1, Security Incident System.

(2) Exemption:

(i) Parts of this system may be exempt pursuant to 5 U.S.C. 552a(j)(2) if the information is compiled and maintained by a component of the agency which performs as its principle function any activity pertaining to the enforcement of criminal laws.

(ii) Portions of this system of records are exempt from the following subsections of the Privacy Act: (c)(3), (c)(4), (d), (e)(2), and (e)(4)(G) through (I), (e)(5), (e)(8), (f) and (g).

(3) Authority: 5 U.S.C. 552a(j)(2).

(4) Reasons:

(i) Granting individuals access to information collected and maintained by this component relating to the enforcement of criminal laws could interfere with orderly administration of justice, and possibly enable suspects to avoid detection or apprehension. Disclosure of this information could result in concealment, destruction, or fabrication of evidence, and jeopardize the safety and well being of informants, witnesses and their families, and of law enforcement personnel and their families. Disclosure of this information could also reveal and render ineffectual investigative techniques, sources, and methods used by this component, and could result in the invasion of privacy of individuals only incidentally related to an investigation.The exemption of the individual's right of access to his or her records, and the reason therefore, necessitate the exemption of this system of records from the requirements of other cited provisions.

(ii) [Reserved]

(p) [Reserved]

(q) System identifier and name:

(1) N05800-1, Legal Office Litigation/Correspondence Files.

(2) Exemption:

(i) Information specifically authorized to be classified under E.O. 12958, as implemented by DoD 5200.1-R, may be exempt pursuant to 5 U.S.C. 552a(k)(1).

(ii) Investigatory material compiled for law enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual is denied any right, privilege, or benefit for which he would otherwise be entitled by Federal law or for which he would otherwise be eligible, as a result of the maintenance of such information, the individual will be provided access to such information except to the extent that disclosure would reveal the identity of a confidential source.

(iii) Investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for federal civilian employment, military service, federal contracts, or access to classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), but only to the extent that such material would reveal the identity of a confidential source.

(iv) Testing or examination material used solely to determine individual qualifications for appointment or promotion in the Federal service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure would compromise the objectivity or fairness of the test or examination process.

(v) Evaluation material used to determine potential for promotion in the Military Services may be exempt pursuant to 5 U.S.C. 552a(k)(7), but only to the extent that the disclosure of such material would reveal the identity of a confidential source.

(vi) Portions of this system of records are exempt from the following subsections of the Privacy Act: (d), (e)(1), and (f)(2), (3), and (4).

(i) Subsection (d) because granting individuals access to information relating to the preparation and conduct of litigation would impair the development and implementation of legal strategy. Accordingly, such records are exempt under the attorney-client privilege. Disclosure might also compromise on-going investigations and reveal confidential informants. Additionally, granting access to the record subject would seriously impair the Navy's ability to negotiate settlements or pursue other civil remedies. Amendment is inappropriate because the litigation files contain official records including transcripts, court orders, investigatory materials, evidentiary materials such as exhibits, decisional memorandum and other case-related papers. Administrative due process could not be achieved by the “exparte” correction of such materials.

(ii) Subsection (e)(1) because it is not possible in all instances to determine relevancy or necessity of specific information in the early stages of case development. What appeared relevant and necessary when collected, ultimately may be deemed unnecessary upon assessment in the context of devising legal strategy. Information collected during civil litigation investigations which is not used during subject case is often retained to provide leads in other cases or to establish patterns of activity.

(iii) Subsections (f)(2), (3), and (4) because this record system is exempt from the individual access provisions of subsection (d).

(r) System identifier and name:

(1) N01000-5, Naval Clemency and Parole Board Files.

(2) Exemption:

(i) Parts of this system may be exempt pursuant to 5 U.S.C. 552a(j)(2) if the information is compiled and maintained by a component of the agency which performs as its principle function any activity pertaining to the enforcement of criminal laws.

(ii) Portions of this system of records are exempt from the following subsections of the Privacy Act: (c)(4), (d), (e)(4)(G), and (f).

(3) Authority: 5 U.S.C. 552a(j)(2).

(4) Reasons:

(i) Granting individuals access to records maintained by this Board could interfere with internal processes by which Board personnel are able to formulate decisions and policies with regard to clemency and parole in cases involving naval prisoners and other persons under the jurisdiction of the Board. Material will be screened to permit access to all material except such records or documents as reflecting items of opinion, conclusion, or recommendation expressed by individual board members or by the board as a whole.

(ii) The exemption of the individual's right to access to portions of these records, and the reasons therefore, necessitate the partial exemption of this system of records from the requirements of the other cited provisions.

(s) System identifier and name:

(1) N06320-2, Family Advocacy Program System.

(2) Exemption:

(i) Investigatory material compiled for law enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual is denied any right, privilege, or benefit for which he would otherwise be entitled by Federal law or for which he would otherwise be eligible, as a result of the maintenance of such information, the individual will be provided access to such information except to the extent that disclosure would reveal the identity of a confidential source.

(ii) Investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for federal civilian employment, military service, federal contracts, or access to classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), but only to the extent that such material would reveal the identity of a confidential source.

(iii) Portions of this system of records are exempt from the following subsections of the Privacy Act: (c)(3) and (d).

(3) Authority: 5 U.S.C. 552a(k)(2) and (k)(5).

(4) Reasons:

(i) Exemption is needed in order to encourage persons having knowledge of abusive or neglectful acts toward children to report such information, and to protect such sources from embarrassment or recriminations, as well as to protect their right to privacy. It is essential that the identities of all individuals who furnish information under an express promise of confidentiality be protected. Additionally, granting individuals access to information relating to criminal and civil law enforcement, as well as the release of certain disclosure accounting, could interfere with ongoing investigations and the orderly administration of justice, in that it could result in the concealment, alteration, destruction, or fabrication of information; could hamper the identification of offenders or alleged offenders and the disposition of charges; and could jeopardize the safety and well being of parents and their children.

(ii) Exempted portions of this system also contain information considered relevant and necessary to make a determination as to qualifications, eligibility, or suitability for Federal employment and Federal contracts, and that was obtained by providing an express or implied promise to the source that his or her identity would not be revealed to the subject of the record.

(t) System identifier and name:

(1) N12930-1, Human Resources Group Personnel Records.

(2) Exemption:

(i) Investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for federal civilian employment, military service, federal contracts, or access to classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), but only to the extent that such material would reveal the identity of a confidential source.

(ii) Testing or examination material used solely to determine individual qualifications for appointment or promotion in the Federal service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure would compromise the objectivity or fairness of the test or examination process.

(iii) Portions of this system of records are exempt from the following subsections of the Privacy Act: (d), (e)(4)(G) and (H), and (f).

(3) Authority: 5 U.S.C. 552a(k)(5) and (k)(6).

(4) Reasons:

(i) Exempted portions of this system contain informationconsidered relevant and necessary to make a determination as toqualifications, eligibility, or suitability for Federal employment, and was obtained by providing express or implied promise to the source that his or her identity would not be revealed to the subject of the record.

(ii) Exempted portions of this system also contain test or examination material used solely to determine individual qualifications for appointment or promotion in the Federal service, the disclosure of which would comprise the objectivity or fairness of the testing or examination process.

(1) Exemption. Parts of this system may be exempt pursuant to 5 U.S.C. 552a(j)(2) if the information is compiled and maintained by a component of the agency which performs as its principle function any activity pertaining to the enforcement of criminal laws. Portions of this system of records that may be exempt pursuant to subsection 5 U.S.C. 552a(j)(2) are (c)(3), (c)(4), (d), (e)(1), (e)(2), (e)(3), (e)(5), (e)(4)(G), (H), and (I), (e)(8), (f), and (g).

(2) Exemption. Information specifically authorized to be classified under E.O. 12958, as implemented by DoD 5200.1-R, may be exempt pursuant to 5 U.S.C. 552a(k)(1).

(3) Exemption. Investigatory material compiled for law enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual is denied any right, privilege, or benefit for which he would otherwise be entitled by Federal law or for which he would otherwise be eligible, as a result of the maintenance of such information, the individual will be provided access to such information except to the extent that disclosure would reveal the identity of a confidential source. Portions of this system of records that may be exempt pursuant to subsections 5 U.S.C. 552a(k)(1) and (k)(2) are (c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f).

(4) Authority: 5 U.S.C. 552a(j)(2), (k)(1), and (k)(2).

(5) Reason: (i) From subsection (c)(3) because release of accounting of disclosure could place the subject of an investigation on notice that he/she is under investigation and provide him/her with significant information concerning the nature of the investigation, resulting in a serious impediment to law enforcement investigations.

(ii) From subsections (c)(4), (d), (e)(4)(G), and (e)(4)(H) because granting individuals access to information collected and maintained for purposes relating to the enforcement of laws could interfere with proper investigations and orderly administration of justice. Granting individuals access to information relating to the preparation and conduct of criminal prosecution would impair the development and implementation of legal strategy. Amendment is inappropriate because the trial/government counsel files contain official records including transcripts, court orders, and investigatory materials such as exhibits, decisional memorandum and other case-related papers. Disclosure of this information could result in the concealment, alteration or destruction of evidence, the identification of offenders or alleged offenders, nature and disposition of charges; and jeopardize the safety and well-being of informants, witnesses and their families, and law enforcement personnel and their families. Disclosure of this information could also reveal and render ineffective investigation techniques, sources, and methods used by law enforcement personnel, and could result in the invasion of privacy of individuals only incidentally related to an investigation.

(iii) From subsection (e)(1) because it is not always possible in all instances to determine relevancy or necessity of specific information in the early stages of case development. Information collected during criminal investigations and prosecutions and not used during the subject case is often retained to provide leads in other cases.

(iv) From subsection (e)(2) because in criminal or other law enforcement investigations, the requirement that information be collected to the greatest extent practicable from the subject individual would alert the subject as to the nature or existence of an investigation, presenting a serious impediment to law enforcement investigations.

(v) From subsection (e)(3) because compliance would constitute a serious impediment to law enforcement in that it could compromise the existence of a confidential investigation or reveal the identity of witnesses or confidential informants.

(vi) From subsection (e)(4)(I) because the identity of specific sources must be withheld in order to protect the confidentiality of the sources of criminal and other law enforcement information. This exemption is further necessary to protect the privacy and physical safety of witnesses and informants.

(vii) From subsection (e)(5) because in the collection of information for law enforcement purposes it is impossible to determine in advance what information is accurate, relevant, timely, and complete. With the passage of time, seemingly irrelevant or untimely information may acquire new significance as further investigation brings new details to light and the accuracy of such information can only be determined in a court of law. The restrictions of subsection (e)(5) would restrict the ability of trained investigators and intelligence analysts to exercise their judgment in reporting on investigations and impede the development of intelligence necessary for effective law enforcement.

(viii) From subsection (e)(8) because compliance would provide an impediment to law enforcement by interfering with the ability to issue warrants or subpoenas and by revealing investigative techniques, procedures, or evidence.

(ix) From subsection (f) and (g) because this record system is exempt from the individual access provisions of subsection (d).

(x) Consistent with the legislative purpose of the Privacy Act of 1974, the Department of the Navy will grant access to nonexempt material in the records being maintained. Disclosure will be governed by the Department of the Navy's Privacy Regulation, but will be limited to the extent that the identity of confidential sources will not be compromised; subjects of an investigation of an actual or potential criminal violation will not be alerted to the investigation; the physical safety of witnesses, informants and law enforcement personnel will not be endangered, the privacy of third parties will not be violated; and that the disclosure would not otherwise impede effective law enforcement. Whenever possible, information of the above nature will be deleted from the requested documents and the balance made available. The controlling principle behind this limited access is to allow disclosures except those indicated above. The decisions to release information from these systems will be made on a case-by-case basis.

(v) System identifier and name:

(1) N05211-1, Privacy Act Files and Tracking System

(2) Exemption

During the processing of a Privacy Act request (which may include access requests, amendment requests, and requests for review for initial denials of such requests), exempt materials from other systems of records may in turn become part of the case record in this system. To the extent that copies of exempt records from those ‘other' systems of records are entered into this system, the Department of the Navy hereby claims the same exemptions for the records from those ‘other' systems that are entered into this system, as claimed for the original primary system of which they are a part.

(4) Records are only exempt from pertinent provisions of 5 U.S.C. 552a to the extent such provisions have been identified and an exemption claimed for the original record and the purposes underlying the exemption for the original record still pertain to the record which is now contained in this system of records. In general, the exemptions were claimed in order to protect properly classified information relating to national defense and foreign policy, to avoid interference during the conduct of criminal, civil, or administrative actions or investigations, to ensure protective services provided the President and others are not compromised, to protect the identity of confidential sources incident to Federal employment, military service, contract, and security clearance determinations, and to preserve the confidentiality and integrity of Federal evaluation materials. The exemption rule for the original records will identify the specific reasons why the records are exempt from specific provisions of 5 U.S.C. 552a.

(w) System identifier and name

(1) N05720-1, FOIA Request Files and Tracking System

(2) Exemption

During the processing of a Freedom of Information Act request, exempt materials from other systems of records may in turn become part of the case record in this system. To the extent that copies of exempt records from those ‘other' systems of records are entered into this system, the Department of the Navy hereby claims the same exemptions for the records from those ‘other' systems that are entered into this system, as claimed for the original primary system of which they are a part.

(4) Records are only exempt from pertinent provisions of 5 U.S.C. 552a to the extent such provisions have been identified and an exemption claimed for the original record and the purposes underlying the exemption for the original record still pertain to the record which is now contained in this system of records. In general, the exemptions were claimed in order to protect properly classified information relating to national defense and foreign policy, to avoid interference during the conduct of criminal, civil, or administrative actions or investigations, to ensure protective services provided the President and others are not compromised, to protect the identity of confidential sources incident to Federal employment, military service, contract, and security clearance determinations, and to preserve the confidentiality and integrity of Federal evaluation materials. The exemption rule for the original records will identify the specific reasons why the records are exempt from specific provisions of 5 U.S.C. 552a.

(i) Parts of this system may be exempt pursuant to 5 U.S.C. 552a(j)(2) if the information is compiled and maintained by a component of the agency which performs as its principle function any activity pertaining to the enforcement of criminal laws.

(ii) Portions of this system of records are exempt from the following subsections of the Privacy Act: (c)(3), (c)(4), (d), (e) (2) and (3), (e)(4)(G) through (I), (e)(5), (e)(8), (f), and (g).

(3) Authority: 5 U.S.C. 552a(j)(2).

(4) Reasons:

(i) Granting individuals access to information collected and maintained by these activities relating to the enforcement of criminal laws could interfere with orderly investigations, with the orderly administration of justice, and might enable suspects to avoid detection or apprehension. Disclosure of this information could result in the concealment, destruction, or fabrication of evidence, and jeopardize the safety and well being of informants, witnesses and their families, and law enforcement personnel and their families. Disclosure of this information could also reveal and render ineffectual investigative techniques, sources, and methods used by this component, and could result in the invasion of the privacy of individuals only incidentally related to an investigation. The exemption of the individual's right of access to his or her records, and the reasons therefore, necessitate the exemption of this system of records from the requirements of other cited provisions.

(i) Investigatory material compiled for law enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual is denied any right, privilege, or benefit for which he would otherwise be entitled by Federal law or for which he would otherwise be eligible, as a result of the maintenance of such information, the individual will be provided access to such information except to the extent that disclosure would reveal the identity of a confidential source.

(ii) Records maintained in connection with providing protective services to the President and other individuals under 18 U.S.C. 3506, may be exempt pursuant to 5 U.S.C. 552a(k)(3).

(iii) Investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for federal civilian employment, military service, federal contracts, or access to classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), but only to the extent that such material would reveal the identity of a confidential source.

(iv) Portions of this system of records are exempt for the following subsections of the Privacy Act: (c)(3), (d), (e)(1), (e)(4)(G) through (I), and (f).

(i) Exempt portions of this system contain information that has been properly classified under E.O. 12958, and that is required to be kept secret in the interest of national defense or foreign policy.

(ii) Exempt portions of this system also contain information considered relevant and necessary to make a determination as to qualifications, eligibility, or suitability for Federal civilian employment, military service, Federal contracts, or access to classified, compartmented, or otherwise sensitive information, and was obtained by providing an expressed or implied assurance to the source that his or her identity would not be revealed to the subject of the record.

(iii) Exempt portions of this system further contain information that identifies sources whose confidentiality must be protected to ensure that the privacy and physical safety of these witnesses and informants are protected.

Pt. 705PART 705—PUBLIC AFFAIRS REGULATIONSSec.705.1Purpose.705.2Chief of Information and the Office of Information (CHINFO).705.3[Reserved]705.4Communication directly with private organizations and individuals.705.5Taking of photos on board naval ships, aircraft and installations by members of the general public.705.6Releasing public information material to the media.705.7Radio and television.705.8Motion pictures.705.9Availability of motion pictures to external audiences.705.10Still photography.705.11Supplying photographs and services to other than Navy and Marine Corps.705.12Print media.705.13Commercial advertising.705.14Embarkation of media representatives.705.15Employment of Navy personnel as correspondents or staff members of civilian news media.705.16Navy produced public information material.705.17Participation guidelines.705.18Authority and coordination.705.19Financing.705.20Use of Navy material and facilities.705.21Requests for Navy participation.705.22Relations with community groups.705.23Guest cruises.705.24Exhibits.705.25Navy Exhibit Center.705.26Exhibit availability report.705.27-705.28[Reserved]705.29Navy Art Collection.705.30Aerospace Education Workshop.705.31USS Arizona Memorial, Pearl Harbor.705.32Aviation events and parachute demonstrations.705.33Participation by Armed Forces bands, choral groups, and troops in the public domain.705.34Other special events.705.35Armed Forces participation in events in the public domain.705.36Government transportation of civilians for public affairs purposes.705.37Public affairs and public service awards.Authority:

5 U.S.C. 301; 10 U.S.C. 5031.

Source:

41 FR 29101, July 15, 1976, unless otherwise noted.

§ 705.1Purpose.

The regulations and rules in this part prescribe policies and procedures for the Department of the Navy pertaining to public affairs practices.

§ 705.2Chief of Information and the Office of Information (CHINFO).

(a) The Chief of Information is the direct representative of the Secretary of the Navy and of the Chief of Naval Operations in all public affairs and internal relations matters. As such, the Chief of Information has the authority to implement public affairs and internal relations policies and to coordinate Navy and Marine Corps public affairs and internal relations activities of mutual interest.

(b) The Chief of Information will keep Navy commands informed of Department of Defense policies and requirements. No command within the Department of the Navy, except Headquarters, Marine Corps, will deal directly with the Office of the Assistant Secretary of Defense (Public Affairs) on public affairs matters unless authorized to do so by the Chief of Information.

(c) The Chief of Information will be consulted on all Navy public affairs and internal relations matters and informed of all operations and proposed plans and policies which have national or international (and in the case of audio-visual material, regional) public affairs aspects.

(d) The Chief of Information heads the Navy Office of Information, the Navy Internal Relations Activity (NIRA), the Office of Information Branch Offices (NAVINFOs), the Navy Public Affairs Center (NAVPACENs) and the Fleet Home Town News Center (FHTNC). In addition, the Chief of Information has responsibility (on behalf of the Secretary of the Navy as Executive Agent for the Department of Defense) for the High School News Service and has operational control of the U.S. Navy Band, Washington, DC.

(e) The Navy Office of Information Branch Offices (NAVINFOs) are located in Atlanta, Boston, Chicago, Dallas, Los Angeles, and New York. As representatives of the Secretary of the Navy, Chief of Naval Operations, and Chief of Information, the NAVINFOs have a primary mission of providing direct liaison with local and regional mass communications media.

(1) The function of the NAVINFOs are as follows:

(i) Establish and maintain close personal relationships with local television, radio, film, publishing, and other mass-media organizations including minority-group-oriented media.

(ii) Seek ways through these media to inform the public about naval personnel and activities.

(iii) Provide assistance to media organizations and respond to their interest in Navy programs, stories, and features. In this regard, maintain informal liaison with various information offices afloat and ashore in order to respond to requests from local media representatives, particularly those from inland areas, who desire to visit fleet units or activities ashore.

(iv) Provide advice on Navy cooperation and assistance, as appropriate, to representatives of national industrial and commercial organizations, including advertising agencies.

(v) Maintain a library of Navy motion picture films for use by local television stations, distribute news films and audio material, and otherwise perform normal audio-visual functions at the local level.

(vi) Provide personnel and other assistance as appropriate, to special Command Information Bureaus and public information staffs of other naval activities as directed by the Chief of Information.

(vii) Advise the Chief of Information on current trends and significant problems relating to local media requirements.

(viii) Seek ways to support the long-range goals and immediate priorities of the Navy.

(ix) Provide advice and assistance in the placement of news and feature materials to the field activities of the Navy Recruiting Command.

(x) Perform such other tasks as may be assigned by the Chief of Information.

(2) Additionally, NAVINFO Los Angeles is the Navy representative for all appropriate liaison with motion picture and network television offices in the Hollywood area. Naval activities will channel all requests for information or assistance from these media to NAVINFO Los Angeles, which will coordinate with CHINFO.

(3) Additionally, NAVINFO New York is the Navy representative for all appropriate liaison with television and radio networks in the New York area and with magazine and book publishers in that area. Requests for assistance originating from these media should be directed to NAVINFO New York, which will coordinate with CHINFO.

(4) Except as specifically directed by CHINFO, the Branch Offices do not have responsibility or authority for community relations or internal relations.

(5) Direct liaison between NAVINFOs and Naval District public affairs offices, Navy recruiters and other naval activities afloat and ashore is encouraged.

(f) Areas covered by the respective offices are:

(1) NAVINFO Atlanta: Alabama, the District of Columbia, Florida, Georgia, Kentucky, Maryland, Mississippi, North Carolina, South Carolina, Tennessee, Virginia, and Southern West Virginia.

(6) NAVINFO New York: Connecticut, Delaware, New Jersey, New York, and Pennsylvania.

(g) The Navy Public Affairs Centers (NAVPACENs) are located in Norfolk and San Diego. The centers have a primary mission of producing Navy stories for dissemination to the media through normal information channels.

(1) The following tasks are included among the functions of the NAVPACENs.

(i) Produce written, audio and photographic feature public information material about fleet and shore personnel, units and activities, as coordinated with and approved for policy and concept by the respective fleet and shore commander concerned.

(ii) Serve as public affairs emergency reaction teams/resource personnel responsive to the requirements of the CNO and CHINFO, and when feasible and appropriate and as approved by CNO or CHINFO, serve as public affairs emergency reaction teams/resource personnel in support of Fleet Commanders.

(iii) Develop feature material to support the long range goals and the immediate priorities of the Navy. Direct liaison is authorized with the Navy Recruiting Command, Recruiting Areas, Recruiting Districts, and other Commanders as appropriate to achieve this function.

(iv) Perform such other tasks as may be assigned by the Chief of Information.

(2) NAVPACENs will have no public affairs news media responsibilities which conflict with the basic public affairs responsibilities of Fleet Commanders-in-Chief. Specifically, NAVPACENs are excluded from responding to news media queries, releasing news information, arranging news media embarkations, or any other day-to-day news media services concerning the respective fleets. These responsibilities remain with the Fleet Commander.

(3) NAVPACENs have no direct responsibility or authority for community relations or internal relations and shall defer in these areas to the cognizant Naval District Commandant.

(4) Direct liaison with Fleet Commanders-in-Chief and NAVINFOs is appropriate and authorized. As approved by the Fleet CINCs, direct liaison with forces afloat and shore activities under the Fleet CINCs is appropriate.

(5) NAVPACENs will carry out their mission and functions in such a manner as not to interfere with the public affairs responsibilities of the District Commandants.

(a) Questions from the public and requests from groups or individuals for pamphlets, photos, biographies, historical matter, etc., must be promptly answered. (32 CFR part 701, subparts A-D refers.)

(b) Assistance within the command's capabilities should (and in some cases, must) be given. Where an established channel for obtaining the item exists, such as a publication stocked by the Superintendent of Documents (Government Printing Office), or photos, as explained in the subparagraph below, the requester may be directed to it. Under some circumstances, a charge may be made. (Consult part 701 or the command's Freedom of Information authority for details.) If a lengthy search, beyond the convenient manpower resources of the command, would be required, the requester may be offered the opportunity of examining the material at the command instead of copies being made.

(c) If a request is refused, the reason must be fully and courteously explained, as required by part 701 of this chapter.

(d) Copies of released U.S. Navy photos may be purchased by the general public.

(1) Photos made within the last 10 years may be purchased from the Naval Photographic Center. Information on the conditions of sale can be obtained by writing to the Commanding Officer, Naval Photographic Center, Naval Station, Washington, DC 20390.

(2) Photos made more than 10 years prior to the current date may be purchased from the National Archives. Details are available from: Audio-Visual Branch National Archives and Records Service, General Services Administration, Washington, DC 20408.

[41 FR 29101, July 15, 1976, as amended at 44 FR 6390, Feb. 1, 1979]§ 705.5Taking of photos on board naval ships, aircraft and installations by members of the general public.

(a) Visitors will not be allowed to take photographic equipment on board a naval ship or aircraft or into a naval activity or to take photographs within a naval jurisdiction unless specially authorized by the officer in command or higher authority.

(b) Guests of the Navy who wish to take photos within naval jurisdictions will be advised of areas where photography is permitted. An escort will be assigned to assure that security is maintained, unless photography is permitted throughout the ship, aircraft or installation, or the areas in which it is not permitted are appropriately guarded or secured.

(c) If there is reason to believe that film exposed by a visitor or media photographer contains classified information, the film will be processed under Navy jurisdiction.

(1) Classified photos, if any, will be retained. All unclassified film will be returned to the owner.

(2) When film exposed by civilian visitors or media representatives in sensitive areas is beyond the capability of the local command to process, it may be forwarded to the Commanding Officer, Naval Photographic Center, for processing. Any special processing instructions should be sent with the film.

§ 705.6Releasing public information material to the media.

(a) Methods of releasing information:

(1) Release at the seat of government and/or as approved by the Assistant Secretary of Defense (Public Affairs).

(i) Overall responsibility for release of information rests with the Assistant Secretary of Defense (Public Affairs). The Chief of Information is responsible for coordinating with him releases of national and international interest (and in the case of audiovisual material of regional interest) and for arranging for local release of such material if considered appropriate by OASD(PA). Information of the above types and also information proposed for release at the seat of government, with the exception of “spot news,” as described in paragraph (b) of this section, following.

(2) Releases by local commands:

(i) News of purely local interest may be released by the command concerned. Higher and coordinating authorities (such as the District Commandant) will be informed, when appropriate, that the release has been made.

(ii) News of national or other wide interest may be released by a local command under the following circumstances:

(A) The Assistant Secretary of Defense (Public Affairs), having approved a release, directs that it be issued by the command concerned.

(B) An event of immediate and urgent news interest, such as a disasterous accident, occurs at the command, and emergency announcements must be made as delay in issuing information would be against the best interests of the Navy. The officer in command will make a “spot news” release of all appropriate information considered releasable.

(1) Copies of spot news releases made (or a description if the announcement is made orally) will be forwarded promptly to the Chief of Information.

(2) If the situation is considered critical, the spot news release will be forwarded by telephone or message.

(b) Means through which information is released to media:

(1) Navy oriented information material (written, taped, motion picture, still photo) is regularly released to all media presumed to be interested.

(2) Similar material is provided in response to query from a news media representative. The material may be produced by the Navy, or the newsman may be assisted in researching, filming, etc. himself.

(3) Exclusive releases:

(i) Information concerning naval activities may be provided on an exclusive basis only when a specific request or inquiry is received from one news media representative for material not requested by other media.

(ii) In such cases, and assuming that the information is properly releasable, the following rules will apply:

(A) If prior to the time information is given to the newsman making the original inquiry or request substantially similar inquiries or requests are received from other newsmen, the first inquirer will be so informed, and subsequent inquirers will be advised that a prior request has been received. None of the inquirers will be told the identity of the individuals or media who have placed these similar inquiries.

(B) If not more than three similar requests are received, the information will be provided simultaneously to each inquirer.

(C) If more than three requests for substantially the same information have been received before any are answered, inquirers will be advised as soon as possible that the information cannot be given on an exclusive or limited basis, and a general release covering the subject will be issued to all media.

(4) News conferences:

(i) A news conference is held when a command has something specific to announce to the press that cannot be handled in a news release or by phone call. A news conference should not be called just to get together with the press. A request from the press is also a reason for conducting a news conference. Special events, significant operations or serious accidents are frequent reasons for calling news conferences. If requested, spokesmen may be made available to the press for questions without specific subject matter in mind, but the press should be clearly informed of the nature of this meeting. Technically, this is not considered a news conference.

(ii) When a news conference is held, it is essential that all interested media be invited to attend.

(iii) A record of what is said should be kept. Ideally, the news conference should be tape recorded and a public affairs officer should be present.

(iv) Official spokesmen will be prepared to answer questions in a frank and candid manner. If the answer would compromise military security, the inquirer should be so advised. If the answer is not known to the spokesman, he should say so and add that the matter will be checked and any available unclassified information provided later.

(v) Newsmen are not normally asked to submit their questions in advance. If this is considered advisable, as in cases where highly technical answers may be required, the answers are prepared in advance and given to all attending newsmen (not just the questioner) at the news conference.

(5) Interviews. These are similar to news conferences except that they involve a single newsman (who has usually requested the interview) and a single Navy spokesman.

(i) Required procedures are essentially the same as for news conferences. However, a public affairs officer should be present only if desired by the person being interviewed. The interview may be taped, if the newsman agrees.

(ii) Without penalizing initiative displayed by a newsman in asking pertinent questions, care should be exercised by the naval spokesman not to make a major revelation of news material to a single media outlet in the course of a routine interview.

(iii) If major areas of difficulty arise in the interview, the Chief of Information should be notified of them.

(6) Background briefings; “Not for attribution”; or “Off the record.”

(i) Since there is a possibility or risk of a misunderstanding arising in these briefings, it is important that all concerned understand and agree to the ground rules.

(ii) In general, information will not be made public unless it can be openly attributed to the Navy and disseminated without reservation. Occasionally, a backgrounder may be helpful. An example is a briefing of embarked newsmen in advance of an operation, providing information which may not be reported until the operation is over. The purpose is to help the newsmen understand the operation while it is taking place.

§ 705.7Radio and television.

(a) Navy relationships with radio and TV representatives are of two types:

(1) Dissemination to them of Navy produced tapes, photos, films, etc. (This is discussed in more detail in § 705.17).

(2) Cooperation with them when they produce a program on a Navy subject. This is discussed in the paragraph following:

(b) Requirement for approval by higher authority.

(1) Commanding officers may:

(i) Release audiovisual material which is spot news, as defined in § 705.6(a)(2)(ii) preceding, or is of purely local interest.

(ii) Participate in local community audiovisual projects of benefit to the Department of Defense or in the national interest.

(iii) Approve one-time, one-station participation by personnel of their commands (as individuals) in programs of purely local interest.

(2) All other audiovisual material originated by the Department of the Navy or requiring Navy cooperation must be approved by the Chief of Information, who will effect the necessary coordination and/or approval of the Assistant Secretary of Defense (Public Affairs).

(i) Requests for assistance from non-governmental audiovisual media will be forwarded, with the maximum available details and an evaluation of the request, through the chain of command to the Chief of Information.

(ii) No direct coordination or contact between local naval commands and the Assistant Secretary of Defense (PA) is authorized unless specifically provided for by separate directives or correspondence.

(i) Be consistent with the goals and aims of the Department of Defense and/or be in the national interest.

(ii) Portray military operation, historical incidents, persons and places, in such a manner as to give a true portrayal and interpretation of military life.

(iii) Comply with accepted standards of dignity and propriety in the industry.

(2) There will be no deviation from established safety standards.

(3) Operational readiness shall not be impaired.

(4) Official activities of military personnel assisting the production must be within the scope of normal military activities. Exceptions to this policy will be made only in unusual circumstances.

(5) Diversion of ships, equipment, personnel and material resources from normal military locations or military operations will not normally be authorized for filming. Exceptions to such policy must be authorized by the Assistant Secretary of Defense (Public Affairs), through the Chief of Information.

(i) The production company concerned must reimburse the government for any extra expense involved. A strict accounting of the additional expenses incurred and charged to the production company must be maintained by the designated project officer. A copy of this accounting will be forwarded to the Chief of Information.

(6) Naval material and personnel will not be employed in such a manner as to compete with commercial and private enterprise. In this regard, any person or agency requesting their use will furnish a noncompetitive certification.

(7) Additional details on procedures will be found in DOD Instruction 5410.16.

(8) In addition to cooperation requested by the media, commands will be alert to the advantages of providing Navy programming and/or encouraging participation by Navy personnel in local radio and TV programming. Examples are community forums, local talent shows, educational and religious programs, children's shows, sports programs, etc.

(d) Participation by individual Navy personnel on radio or TV programs:

(1) In general, such participation is encouraged if it is:

(i) Dignified and considered in the interests of the Navy.

(ii) Compatible with operational commitments.

(iii) Not in competition with the regular employment of professional performers.

(2) The public affairs officer will screen requests for such appearances for members of his command to see that the programs are in good taste, and that neither the Navy nor its personnel are exposed to embarrassment for the sake of entertainment.

(3) Approval of participation by Navy individuals:

(i) Approval is not required for personnel attending audience participation broadcasts if they are selected at random from the audience.

(ii) One-time, one-station participation of purely local interest may be approved by the officer in command concerned.

(iii) If participation will be on a network (defined as more than one station, even if local) of if the same person or program is requested by two or more unrelated stations, approval by the Chief of Information must be obtained even if the show is of local interest only.

(e) Use of official footage:

(1) Use of official U.S. Navy stock film footage on TV broadcasts is not authorized without approval and clearance by the Chief of Information and the Department of Defense.

(2) Use of Navy public information motion pictures cleared for TV is authorized and encouraged except that such films may be used on subscription or pay TV only when offered to the viewers at no cost.

(3) Navy films will not be cut or portions duplicated for TV use in lieu of stock footage without prior approval by the Chief of Information.

(f) Music clearance. The Navy assumes no responsibility for clearance of music used on Navy recordings, transcriptions, or films not specially produced or authorized for radio or TV broadcast.

(g) Disclaimers. A disclaimer is not necessary if a product is advertised on a program in which the Navy participates, but there must be no stated or implied endorsement of it by the Navy or by naval personnel appearing on the program.

(h) Requests for courtesy prints of commercial television programs:

(1) Requests will not be made directly to the producer or network concerned, but will be forwarded to the Chief of Information by the Navy requester.

(2) These courtesy prints will be exhibited only under circumstances which cannot be construed as competitive with commercial ventures.

§ 705.8Motion pictures.

(a) The rules and procedures given in the preceding for TV will also apply to cooperation with commercial motion picture producers.

(b) The Navy assists in the production of commercial, privately financed, nontheatrical motion pictures of institutional or of educational value to the public. They Navy will not:

(1) Solicit their production.

(2) Provide lists of subjects the Navy considers “desirable.”

(3) State that the Navy will use a commercially produced film.

(4) Imply endorsement of a product.

(5) Permit the use of official Navy seals.

(c) Navy assistance to motion pictures and all other audio-visual products produced by Navy contractors will be subject to the same rules and procedures that apply to other non-government producers. Audio-visual products produced by Navy contractors, with or without Navy assistance, will be submitted to the Chief of Information via the appropriate Navy headquarters activity for coordination with the Assistant Secretary of Defense (Public Affairs) for clearance for public release. They will be accompained by five copies of the script and a statement from the producer that costs were paid from corporate (vice contract) funds.

(d) When a commercial film which has been produced with Navy cooperation is screened in a community, local commands can provide Navy exhibits for display in theater lobbies, coordinate displays of recruiting material, and arrange for personal appearances of Department of Defense and Department of the Navy military and civilian personnel, provided such cooperation is approved by the Chief of Information and the Assistant Secretary of Defense (Public Affairs).

(a) Public access. Navy and Marine Corps general motion pictures and motion picture projects not previously cleared for public exhibition will require clearance by the Chief of Information or the Marine Corps Director of Information, as appropriate, prior to public viewing. Concurrent review of legal rights and instruments associated with the production will be carried out by Patent Counsel, Naval Air Systems Command (AIR-OOP). Cleared motion pictures may also be made available for free loan as determined by the individual services. In addition, cleared motion pictures may be provided for rent or sale through the National Audio-Visual Center, National Archives and Records Service (GSA), Washington, DC 20409.

(b) Foreign military training. Motion pictures from the Navy inventory may be made available for foreign military training programs on approval by the Chief of Naval Operations. Classified motion pictures selected for such use will also require a security review by the Chief of Naval Operations.

§ 705.10Still photography.

(a) Policy and procedures on taking photos by the general public, given in § 705.5 apply also to media representatives.

(b) Basic policy and procedures for still photos are set forth in the Manual of Naval Photography, OPNAVINST 3150.6D.

(c) Authority to forbid photography:

(1) On Navy property, the officer in command may forbid the taking of photographs and may confiscate film, reviewing it if it is suspected that classified material has been photographed. In such cases, all unclassified photos will be returned promptly to the photographer.

(2) Navy personnel have no authority to confiscate film off Navy property. If, as in an accident, classified equipment is exposed which cannot be removed or covered, Navy representatives will ask news media photographers not to photograph it and will inform them of 18 U.S.C. 793(e), 795, 797, which makes it a criminal offense to photograph classified material. Navy personnel will not use force if media photographers refuse to cooperate, but will instead seek the assistance of appropriate civil authorities and/or the photographer's superior in recovering film or photographs presumed to be of classified nature.

(3) If media photographers are uncooperative in regard to protection of classified material, an account of the matter will be forwarded to the Chief of Information.

(d) Release of photographs:

(1) Most unclassified photographs of interest to the public may be released to news media. However, the rights of individuals photographed and special constraints such as those described in section 0403 of the Public Affairs Regulations must be taken into consideration before a decision is made to release a photograph. In addition, photos which might be harmful to recruiting or otherwise not be in the Navy's best interests will not be used unless this failure to release them constitutes suppression of legitimate news.

(2) Photographs of strictly local interest can be made available by the command to local media without being submitted to review by higher authority.

(3) If a feature type photo released locally is considered of possible interest elsewhere, because of its human interest or artistic merit, a single print should be forwarded to the Chief of Information, together with a notation of the distribution made.

(4) Photographs of national interest:

(i) “Spot news” photos may be released by a District Commandant or Fleet or Force Commander.

(ii) If a photo has been released by a local command to national news media:

(A) The original negative or transparency will be forwarded by the fastest available means to the Commanding Officer, Naval Photographic Center, Naval Station, Washington, DC 20390. Such forwarding will be in accordance with the Manual of Naval Photography, par. 0445, subparagraphs 3 and 4.

(B) One print, a copy of the letter of transmittal, and the distribution list will be forwarded to the Chief of Information.

(C) Navy units with a Unified Command will forward the photos through Unified Command channels.

(D) All other commands will forward the photos to the Chief of Information who will effect coordination with the Office of the Assistant Secretary of Defense (Public Affairs) and, if necessary, arrange for security review.

(iii) Photography of research activities is normally considered to be of national interest.

(iv) Still photographs of national news interest may be forwarded, unprocessed, for release by the Chief of Information by any command not subject to the authority of a Unified or Specified Commander. Such forwarding will be in accordance with paragraph 0445, subparagraph 3, of the Manual of Naval Photography. All available caption material will be forwarded with this unprocessed photography.

§ 705.11Supplying photographs and services to other than Navy and Marine Corps.

(a) To avoid competition with civilian photographic organizations, naval aircraft will not be used to take photographs for, nor will photographs or mosaic maps be provided to any individuals, corporations, or agencies other than departments or agencies of the federal government, without specific permission from the Chief of Naval Operations.

(b) In the case of natural catastrophe, or other circumstances where prompt action is required, the senior officer present may authorize a departure from the preceding paragraph. In all such cases, a report of the circumstances will be made to the Chief of Naval Operations.

(c) This policy does not preclude releases to the media, news companies, and others in accordance with established procedures, or the sale of released photographs to private agencies or individuals under existing Department of Defense regulations and part 701, subparts A-D, Availability to the public of Department of the Navy Information and Records. Normally, requests by individuals for still photographs and motion picture photography for private use are forwarded to the Commanding Officer, Naval Photographic Center, Naval Station, Washington, DC 20390, for action. Procedures for the collection or authority for waiver of fees for service and material provided are set forth in Volume III, NAVCOMPT Manual, and part 701, subparts A-D.

(d) Navy aerial photography released for sale to the public is transferred to the United States Department of the Interior. Inquirers regarding the purchase of this photography should be directed to Chief, Map Information Office, Geological Survey, Department of the Interior, Washington, DC 20025.

(e) Navy training films suitable for sale to the public are transferred to the National Audio-Visual Center, National Archives and Records Service, General Services Administration, Washington, DC 20408. Inquires regarding the sale of Navy training films should be addressed to the National Audio-Visual Center.

(f) This policy does not preclude releases to contractors and others properly engaged in the conduct of the Navy's business. However, when services are performed for other agencies of the government, and under certain conditions, for other military departments, the Navy Comptroller Manual prescribes that such are subject to reimbursement.

(g) All private inquiries from foreign nationals should be returned, advising the addressee to contact his local U.S. Information Service officer for the desired materials.

§ 705.12Print media.

Requests for reprints of items published in national media will be addressed to the Chief of Information. Commands will be careful not to reproduce on their own authority any copyrighted material without advance permission from the copyright holder.

§ 705.13Commercial advertising.

(a) The Navy encourages cooperation with advertisers. However, the layout, artwork and text of the proposed advertisement must be submitted to the Chief of Information for review and for clearance by other appropriate authorities.

(b) Requests from commercial enterprises (including those with Navy contracts) for use of Navy personnel, facilities, equipment or supplies for advertising purposes must be referred to the Chief of Information.

(c) Official Navy photos which have been cleared and are released for open publication may be furnished for commercial advertising, if properly identified and captioned. No photos will be taken exclusively for the use of an advertiser.

(d) Navy cooperation in commercial advertising, publicity and other promotional activities will be based on the following requirements.

(1) It must be in accordance with the provisions of 32 CFR part 721.

(2) It must be in good taste and not reflect discredit on the Navy or the U.S. Government. Statements made must be matters of fact, without misleading information or other objectionable features.

(3) It must not indicate that a product is used by the Navy to the exclusion of similar products offered by other manufacturers or appear to endorse or selectively benefit or favor (directly or indirectly) any private individual, sect, fraternal organization, commercial venture or political group, or be associated with solicitation of votes in a political election. It will not infer Navy responsibility for the accuracy of the advertiser's claims or for his compliance with laws protecting the rights of privacy of military personnel whose photographs, names or statements appear in the advertisement. It will neither indicate that a product has undergone Navy tests nor disclose data from any Navy tests which may have been made.

(4) It may not promote the use of tobacco or alcohol.

(e) Use of uniforms and naval insignias. These may be used provided it is done in a dignified manner.

(f) Use of Naval personnel:

(1) Personnel may receive no compensation.

(2) Personnel will not be inconvenienced or have their training or normal duties interrupted.

(3) Written consent from the person concerned must be obtained before a photo may be used.

(4) Navy civilians and military personnel on active duty may not use their position titles or ranks in connection with any commercial enterprise or endorsement of a commercial product. (Retired personnel and Reserves not on active duty may use their military titles in connection with commercial enterprises if this does not give rise to the appearance of sponsorship of the enterprise by the Navy or Department or in any way reflect discredit upon them.)

(5) Testimonials from naval personnel are not banned, but the person giving the testimonial must not be specifically identified.

(i) The use of name, initials, rank or rate of Navy personnel appearing in testimonial advertising is not permitted, but such expressions as, “says a Navy chief,” may be used.

(ii) Care will be taken to ensure that testimonials from Navy personnel are presented in such a way as to make clear that the views expressed are those of the individual and not of the Department of the Navy.

§ 705.14Embarkation of media representatives.

(a) General. (1) Although this paragraph applies primarily to embarkation in ships, provisions which are applicable to embarkation on aircraft or visits to shore installations apply also to those situations.

(2) See also § 705.37 on transportation of non-Navy civilians.

(b) Invitations to embark. (1) Invitations should be extended as far in advance as possible and inclusive information on the following should be provided:

(i) Type, scope and duration of operation or cruise.

(ii) Communications, methods of press transmission, and charges, if any.

(iii) Transportation arrangements.

(iv) Approximate cost of meals and/or quarters, and the statement that the newsman will be expected to pay for these and other personal expenses incurred.

(2) It should be made clear to the newsman that there may be limits on movement from one participating unit to another. If helicopters or highline transfers are to be used, their limitations and hazards should be explained.

(3) On operations where security is critical, embarkation of newsmen may be made contingent to their agreement to submit copy for security review. Under such circumstances, the reason for the review will be made clear prior to embarkation, and every effort will be made to avoid any interpretation of such review as “censorship” or interference with freedom of the press.

(c) Arrangements aboard ship. (1) Where appropriate, a briefing should be held at the earliest convenient time after embarkation at which newsmen may meet the commanding officer and other key personnel and guests and at which previously supplied information is reviewed.

(2) If feasible, an escort officer will be assigned to each newsman (or group of newsmen having similar requirements).

(3) It should be reported in the ship's newspaper (and on radio and closed-circuit TV, if any) that newsmen will be embarked, giving their names and the media they represent.

(4) If a correspondent is interested in home town material, personnel from his area should be contacted in advance, if possible, to determine if and when they would be available for interviews and photos.

(5) Representatives of press associations and radio and TV networks will be embarked in the Exercise Commander's flagship or the Exercise Control ship, when possible. This ship should also control the ship-to-shore press radio and teletype (RATT).

(6) When more than one representative from the same medium is embarked, an attempt should be made to have them located at separate vantage points.

(d) Communications. (1) Every effort will be made to provide suitable communication facilities for newsmen embarked (including equipment and personnel, if feasible).

(2) All persons embarked with permission of proper authority and accredited as correspondents are eligible to file press traffic, as authorized by the procedures set forth in Naval Telecommunication Procedures (NTP-9), “Commercial Communications.”

(3) Navy radio or wire transmission facilities, where available, may be made available to news media (including accredited civilian photographers) when operational requirements permit, in accordance with instructions set forth by the Director of Naval Communications. This includes making live broadcasts or telecasts. (A live network broadcast or telecast must, however, be approved by the Chief of Information.)

(4) Messages and instructions from editors and station managers to embarked newsmen will be handled as press traffic, as authorized in Naval Telecommunication Procedures (NTP-9).

(5) Stations receiving press circuits will be authorized to receipt for press traffic without asking for time-consuming “repeats.”

(6) Under normal circumstances, press copy will be transmitted on a first-come, first-served basis; however, newsmen will be informed that the prerogative of limiting the amount to be filed during any one period rests with the Exercise Commander.

(7) If it becomes necessary for operational reasons for newsmen to pool copy, such messages shall be filed as “multiple address messages” or book messages, as appropriate, or when requested by the newsmen concerned.

(8) If the locale of the exercise permits newsfilm and press mail to be flown ashore, flights should be scheduled on a high priority basis to connect with scheduled commercial air traffic. Operational aircraft as well as scheduled government air flights should be considered for delivery of television news film, radio tapes and photography to the nearest commercial communications facility.

(e) Voluntary submission of material by a newsman for security review. When a review is not required but is sought by the newsman, no attempt will be made to delete or change any material, whether or not it appears critical of the Navy or of naval personnel. If any classified information is included, the newsman will be asked to delete it. In addition, his attention will be drawn to any inaccurate or possibly misleading statements.

(a) A member of the naval service on active duty or Navy civilian may act as correspondent for a news periodical or service, radio or TV station or network, or may work part-time for such an organization. The Secretary of the Navy will, however, be immediately informed, via the Chief of Information.

(1) See section 0307 (par. 5), section 0308 (par. 4), and section 0309 (par. 3) of the Navy Public Affairs Regulations for regulations referring to personnel assigned to public affairs staffs receiving compensation for such work.

(2) In time of war, only personnel assigned to public affairs billets and such other personnel as the Secretary of the Navy may authorize can act as correspondents for civilian media.

(b) Military personnel on active duty and Navy civilians may not serve on the staff of a “civilian enterprise” newspaper published for personnel of a Navy installation or activity.

§ 705.16Navy produced public information material.

(a) Still photo—(1) General. (i) The policy and procedures given for media produced still photos in § 705.10, apply to Navy produced photos.

(ii) The Office of Information does not issue, nor have funds available for the purchases of, any photographic equipment or supplies for Navy commands. Details on the establishment of authorized laboratories and acquisition of equipment and supplies are given in the Manual of Navy Photography (OPNAVINST 3150.6D).

(2) Photographic coverage of command events. (i) If more than two photographers are required to cover a public event, consideration should be given to having them wear appropriate civilian attire.

(ii) Personnel in uniform who are amateur photographers and who are attending the event as spectators will not be discouraged from taking photos.

(3) Unofficial photos taken by Navy personnel. (i) The following regulations apply to Navy civilian employees and to Navy personnel in transit through a command, as well as to active duty personnel assigned to the command.

(ii) Personal cameras and related equipment are permitted on Navy ships, aircraft and stations at the discretion of the officer in command.

(iii) An officer in command may screen all photos taken by naval personnel with personal cameras within the jurisdiction of the command to protect classified information or to acquire photos for official use, including public affairs. Photographs taken by bystanders at times of accident, combat, or similar significant events can be valuable for preparation of official report and public release. They should be collected for screening and review as expeditiously as possible.

(iv) Amateur photographers should also be encouraged to volunteer the use of interesting or significant photos for public affairs use.

(v) Photos made by naval personnel, with either personal cameras and film, Navy equipment and film, or any combination thereof, may be designated “Official Navy Photo” if it is considered in the best interests of the Navy.

(A) All precautions will be taken to protect such film from loss or damage, and all unclassified personal photos not designated as “official” will be returned to the owner immediately after review.

(B) When a photo taken by an individual who is not an official photographer is selected for public affairs release:

(1) The photographer will receive credit for his work in the same manner as an official photographer.

(2) The original negative or transparency will be retained and assigned an official file number. It will then be handled like any other official Navy photograph.

(3) At least one duplicate negative or transparency of each unclassified personal photo which has been designated as “official” will be prepared and delivered to the photographer. A black-and-white print may also be prepared for the photographer's personal use.

(b) Audiovisual. (1) The Chief of Information releases TV featurettes directly to local TV stations and the Office of Information's Branch Offices (NAV INFO's). After such featurettes have been cleared for public release by the Assistant Secretary of Defense (Public Affairs).

(2) The Assistant Secretary of Defense (PA) must approve, prior to commitment of funds, the initiation of Navy audiovisual productions intended for public release.

(3) Motion picture film.

(i) Film of major news value will be forwarded immediately, unprocessed, to the Commanding Officer, U.S. Naval Photographic Center. The package should be labeled as follows:

News Film—Do Not DelayCommanding Officer, U.S. Naval Photographic Center (ATTN: CHINFO Liaison), Washington, DC 20374.News Film—Do Not DelayThe Commanding Officer of the Naval Photographic Center will be advised (with an information copy to the Chief of Information) of its forwarding, the subject, type and amount of footage, method of delivery, and estimated time of arrival in Washington.

(ii) The original negative of motion picture photography of feature value (photography which will not lose its timeliness over a reasonable length of time) will be forwarded to the Naval Photographic Center, and a copy of the forwarding letter will be sent to the Chief of Information.

(c) Fleet Home Town News Center (FHTNC). (1) All public affairs officers will assure that appropirate news and photo releases on personnel of their commands are regularly sent to the Fleet Home Town News Center.

(2) Procedures, requirements and formats are contained in CHIN-FOINST 5724.1.

(a) The provisions of this section refer to participation by naval personnel and use of Navy facilities and material in events sponsored by nongovernment organizations except where otherwise stated.

(b) In accordance with the established responsibilities of local officers in command, these officers will continue to determine whether facilities, equipment and personnel within their cognizance may be provided for such programs (except in the Washington, DC area where the Assistant Secretary of Defense (Public Affairs) is the authorizing authority).

(c) Officers in command will ensure that participation is appropriate in scope and type, and is limited to those occasions which are: In keeping with the dignity of the Department of the Navy, in good taste and in conformance with the provisions of part 721 of this chapter. The national, regional, state or local significance of the event and the agency sponsoring the event will be used as guides in determining the scope and type of Navy participation to be authorized.

(d) Participation in community relations programs is authorized and encouraged to accomplish the aims and purposes as set forth in § 705.18 (following). Where mutually beneficial to the Department of Defense and the public, support authorized and provided is always subject to operational considerations, availability of requested support and the policy guidance provided herein.

(e) Military personnel, facilities, and materiel may be used to support non-government public affairs programs when:

(1) The use of such facilities, equipment and personnel will not interfere with the military mission or the training or operational commmitments of the command.

(2) Such programs are sponsored by responsible organizations.

(3) Such programs are known to be nonpartisan in character, and there is no reason to believe that the views to be expressed by the participants will be contrary to established national policy.

(f) The sponsoring organizations or groups will be clearly identified in all cases where naval personnel participate as speakers, or military support is furnished.

(g) Public affairs programs sponsored by civilian organizations will not be cosponsored by a naval command unless expressly authorized by the Chief of Information.

(h) Participation will not normally be authorized in public events when the presence of military participants deprives civilians of employment. Officers in command will screen all requests for use of material and personnel in Navy-sponsored social functions held off military installations.

(i) Navy participation and cooperation must not directly or indirectly endorse, or selectively benefit, or appear to endorse, benefit or favor, any private individual, group, corporation (whether for profit or nonprofit), sect, quasi-religious or ideological movement, fraternal, or political organization, or commercial venture, or be associated with the solicitation of votes in a political election.

(1) Providing use of government facilities, such as transportation, housing, or messing, at government expense to private groups is normally interpreted as a selective benefit or favor and is not authorized as part of a community relations program. Therefore, such provisions are normally not authorized as part of a community relations program, even though certain uses of facilities may be authorized under directives on domestic action or other programs.

(2) The above does not bar private groups from providing entertainment on base. However, the appearance must be for entertainment and not for fund-raising, or any political or promotional purpose.

(j) Community relations programs must always be conducted in a manner free from any discrimination because of race, creed, color, national origin, or sex.

(1) Navy participation in a public event is not authorized if admission, seating and other accommodations and facilities are restricted in a discriminatory manner.

(2) Exceptions for participation may be made under certain circumstances for an ethnic or ideological group when they do not entertain any purpose of discriminating against any other group. Any such exceptions must be referred to the Chief of Information for consideration.

(3) Support to nationally recognized veterans’ organizations is authorized when the participation is in support of positive programs which are not in themselves discriminatory.

(4) Navy support to nonpublic school activities is authorized when the participation is clearly in support of educational programs or Navy recruiting.

(5) Commands should ensure minority participation in all community relations activities and events, as appropriate. This includes but is not limited to the following:

(i) Ensure that the minority community is aware of the procedure for obtaining Navy support for community events and that they are appraised of the use of Navy demonstration teams, units, and speakers.

(iii) Continue to cultivate a rapport with key members of all minority communities.

(k) Participation is not authorized if there is fund raising of any type connected with the event, except as provided for in § 705.34.

(l) No admission charge may be levied on the public solely to see an Armed Forces demonstration, unit, or exhibit.

(1) When admission is charged, the Armed Forces activity must not be the sole or primary attraction.

(2) A general admission charge need not be considered prohibitory to Navy participation, but no specific or additional charge may be made because of Navy participation.

(3) Participation shall be incidental to the event except for programs of a patriotic nature, celebration of national holidays, or events which are open to the general public at no charge for admission.

(4) The provisions of this paragraph do not apply to the Navy's Blue Angel Flight Demonstration Team or to the Navy Band and other special bands engaged in authorized concert tours conducted at no additional cost to the government.

(m) Some participation in or support of commercially sponsored programs on audio or visual media is allowable. See §§ 705.7 and 705.8.

(n) Some participation which supports commercial advertising, publicity and promotional activities or events is allowable. See section 0405, par. 3 of the Navy Public Affairs Regulations.

(o) Navy speakers may be provided for certain events at which other forms of Navy participation may not be appropriate. See section 0604, par. 8 of the Navy Public Affairs Regulations.

(p) When participation is in the mutual interest of the Navy and the sponsor of the event, participation will be authorized at no additional cost to the government. Additional costs to the government (travel and transportation of military personnel, meals and quarters, or standard per diem allowances, etc.) will be borne by the sponsor.

(q) Department of Defense policy prohibits payment by the Armed Forces for rental of exhibit space, utilities, or janitorial costs. Other exceptions may be given under unusual circumstances.

(r) Navy participation in professional sports events and post-season bowl games will frequently be authorized at no additional cost to the government, will emphasize Joint Service activity when possible, and must support recruiting programs. Chief of Information approval is required.

(s) Navy participation in public events shall be authorized only when it can be reasonably expected to bring credit to the individuals involved and to the Armed Forces and their recruiting objectives. Naval personnel will not be used in such capacities as ushers, guards, parking lot attendants, runner or messengers, baggage handlers or for crowd control, or in any installations.

(t) Maximum advantage of recruiting potential will be taken at appropriate events for which Navy participation has been authorized.

(u) Navy support will not normally be authorized for commercially-oriented events such as shopping center promotions, Christmas parades, and other such events clearly sponsored by, or conducted for the benefit of commercial interests. However, this policy does not preclude participation of Navy recruiting personnel and their organic equipment, materials and exhibits so long as their participation is not used to stimulate sales or increase the flow of business traffic or to give that appearance. Requests for exceptions will be considered on a case-by-case basis by the Chief of Information.

(v) Questions as to appropriateness of Navy participation, or as to existing Navy and OASD (PA) policy, may be referred to the Chief of Information.

(w) Procedures for requesting participation are addressed in § 705.21.

(a) Each naval command will coordinate its community relations program with the senior authority having responsibility for community relations in its area (District Commandant, Unified Commander, or other).

(b) Within policy limitations outlined in this section, the command receiving a request for Navy participation, and processing the required resources, has the authority to process the request and provide the support requested.

(c) Requests for support exceeding local capability, or requiring approval from higher authority, or requiring an exception to policy will be referred as directed in § 705.21 for determination.

(d) The Assistant Secretary of Defense (Public Affairs) has the overall responsibility for the Department of Defense community relations program. Civilian sponsors should be advised to address requests for approval of the following types of programs directly to the Director of Community Relations, Office of the Assistant Secretary of Defense (Public Affairs), Pentagon, Washington, DC 20301:

(1) National and international events, including conventions, except those taking place in overseas areas which are primarily of internal concern to Unified Commanders.

(2) Events outside the United States which have an interest and impact extending beyond the Unified Command areas, or which require assistance from outside the command area.

(3) Public events in the Washington, DC area.

(4) Aerial, parachute, or simulated tactical demonstrations held in the public domain, except those held in areas assigned to overseas Unified Commands.

(5) Aerial reviews on military installations within the United States if the review involves more than one Service.

(6) Programmed national sports, professional athletic events, formal international competitions, and contests between a Navy and professional team in the public domain. See section 0605, par. 18 of the Navy Public Affairs Regulations.

(7) Performing Navy units appearing on regional or national television.

(8) Overall planning for Armed Forces Day (not including local activities).

(9) Granting exceptions to policy.

(e) Overseas, Unified Commanders are designated to act for and on behalf of the Secretary of Defense in implementing community relations programs within their command areas and in granting any exceptions to policy or regulations. This authority may be delegated.

(1) Policy, direction and guidance for Unified Command community relations programs are provided to Navy components of these commands by the Unified Commander concerned.

(2) Authority of the Commander-in-Chief, Pacific extends to planning and execution of community relations programs in Alaska and Hawaii. Participation in events held in Alaska and Hawaii will be governed by the same principles as policies applicable to other states.

(3) Community relations programs and events taking place within the United States which have an effect on a Unified or Specified Command as a whole, or are otherwise of significant concern to the Unified Command, require complete coordination through appropriate channels between the Unified Command and naval activities concerned.

(4) Unified Commanders overseas requiring Navy support for a community reltaions program or participation in a public event should coordinate their requirements with the appropriate Navy component command.

(f) The Secretary of the Navy will plan and execute Navy community relations programs and approve Navy participation in public events not otherwise reserved or assigned to the Secretary of Defense. This authority may be delegated.

§ 705.19Financing.

(a) The financial requirements for community relations purposes will be kept to the minimum necessary to accomplish Department of Defense objectives.

(b) Costs of participation will normally be at government expense for the following types of events and programs when they are in the primary interest of the Department of Defense:

(1) Public observances of national holidays.

(2) Official ceremonies and functions.

(3) Speaking engagements.

(4) Programmed, scheduled tours by Navy information activity support units (e.g., an exhibit from the Navy Exhibit Center) when this method of reaching special audiences is considered by the Secretary of the Navy to be the most effective and economical way of accomplishing a priority public affairs program.

(5) Tours by units (e.g., the Navy Band) for which appropriated funds have been specifically provided.

(6) Support of recruiting.

(7) Events considered to be in the national interest, or in the professional, scientific, or technical interests of the Navy or Department of Defense, when approved by the Secretary of Defense or the overseas Unified Commander, as appropriate.

(c) Navy participation in all other public events will normally be at no additional costs to the government.

(1) Continuing type costs to the government which would have existed had the Navy not participated in the event will not be reimbursed by the sponsor.

(2) Transportation costs may be excluded from the costs to be borne by the sponsor when the transportation can be accomplished by government aircraft on a normal training flight or opportune airlift.

§ 705.20Use of Navy material and facilities.

(a) The loan of equipment and permission to use facilities will be dependent on the following:

(1) The program support must be within the command's public affairs responsibility.

(2) The loan of the equipment must not interfere with the military mission of the command.

(3) Equipment must be available within the command or obtainable from another Navy command in the local area.

(4) The event must be of the type for which participation is considered appropriate.

(5) It must not be in any direct or implied competition with a commercial source.

(6) There must be no potential danger to persons or private property that could result in a claim against the government. Safety requirements will be observed.

(b) Use of open mess facilities will be permitted only under one of the following conditions:

(1) Incident to the holding of a professional or technical seminar at the command.

(2) Incident to an official visit to the command by a civic group.

(3) Navy League Council luncheon or dinner meetings (not to exceed one per quarter per group).

(4) Incident to group visits by the Boy Scouts of America, Boys Clubs of America, the Navy League Sea Cadets (by virtue of their federal charters), Girl Scouts and the Navy League Shipmates, and a few representative adult leaders.

(c) Use of the official Navy flag will be in accordance with SECNAVINST 10520.2C and of official emblem in accordance with OPNAVINST 5030.11B.

(d) Requests not meeting the criteria cited here, but which are considered by the officer in command to have merit, may be referred to the Chief of Information.

(a) Decisions will be made on a case-by-case basis. Events which are inappropriate for one type of participation may be entirely appropriate for another type of participation. A positive and flexible approach should be employed.

(b) Requests by civilian organizations for Navy participation in programs or events they sponsor should be addressed to the nearest naval installation and should be evaluated and authorized at that level if possible. Request exceeding local resoures, or requiring authorization from higher authority, should be forwarded through appropriate channels.

(c) Requests for Armed Forces participation in public events are to be submitted on official request forms (§§ 705.33, 705.34 and 705.36) by the sponsors of events occurring outside a command's area of direct knowledge and local capability, or involving a type or level of participation unavailable locally, or requiring approval of higher authority.

(d) Fact sheets expounding upon normally requested assets are enclosed in §§ 705.33, 705.34 and 705.36 and may be reproduced and distributed locally.

(e) The official request form is to be used on all requests referred to the Chief of Information and to the Office of Assistant Secretary of Defense (Public Affairs).

§ 705.22Relations with community groups.

(a) Naval commands will cooperate with and assist community groups within their capabilities, to the event authorized by current instructions, and will participate in their activitis to the extent feasible.

(b) Navy commands will encourage membership of personnel in community organizations.

(c) Officers in command will withhold approval of requests from community groups, organizations or individuals whose purposes are unclear, pending advice from the Chief of Information.

(d) Commands may make facilities, less housing and messing, available to community groups, at no expense to the government, when it is in the best interest of the Navy to do so. Mess facilities may not be used for meetings of civic groups or other asociations unless all the members of the group concerned are authorized participants of the mess as prescribed in NAVPERS 15951, except as provided below:

(1) Requests to make open mess facilities available to professional or technical seminars or civic groups meeting in connection with an official visit to the activity may be submitted to the officer in charge of the mess, or other appropriate authority. Such requests may be approved when it is shown that the inspection of the activity or the holding of a professional seminar is of principal importance and the use of mess facilities is incidental thereto.

(2) Because of the exceptional nature of the Navy League, as recognized by the Secretary of the Navy, open mess facilities may be used for luncheon or dinner meetings of Navy League Councils, but not more often than once per quarter per group.

(e) Relations with Industry and Labor in the Community (refer to SECNAVINST 5370.2F and DOD Directive 5500.7):

(1) Relations with Navy contractors and with industry and business in general are the responsibility of the officer in command, with the assistance of his public affairs officer.

(2) Navy commands will cooperate with industry and its representatives in planning and executing community relations projects of mutual interest.

(i) Visits to commands will be scheduled for industrial and employee groups under the same conditions as for other civilian groups.

(ii) A contractor may be identified in a news release, exhibit, or the like whenever the major responsibility for the product can be clearly and fairly credited to him. In such cases, both the manufacturer's name for the product and the Navy designation of it will be used.

(iii) Commands will not solicit, nor authorize others to solicit, contractors to provide advertising, contributions, donations, subscriptions, etc. Where there is a legitimate need for industrial promotion items, such as scale models, the command will contact the Chief of Information for advice as to the procedure for requesting procurement.

(iv) Similarly, if Defense contractors wish to distribute information material through official Navy channels, the Office of Information will be queried as to the desirability and feasibility of undertaking the desired distribution.

(v) Visits to contractor facilities are governed by the provisions of DOD Manual 5520.22-M (Industrial Security Manual for Safeguarding Classified Information). If nationally known press representatives will be involved, prior approval must be obtained both from the contractor (via the Chief of Information) and from the Assistant Secretary of Defense (Public Affairs).

(3) Commands will maintain the same relationship with labor unions as with other community groups and will not take action in connection with labor disputes. Personnel inadvertently or incidentally involved in labor disputes will consult officers in command for guidance.

(f) Emergency Assistance to the Community:

(1) Navy commands will offer and provide assistance to adjacent communities in the event of disaster or other emergency.

(2) The Chief of Information will be advised immediately of action when taken, and copies of subsequent reports to the Chief of Naval Operations will be forwarded to the Chief of Information.

(3) Navy commands will participate in planning by local Civil Defense officials.

(a) General policy. (1) The embarkation of civilian guests in Navy ships is appropriate in the furtherance of continuing public awareness of the Navy and its mission.

(i) Examples of embarkations for public affairs purposes are (but not limited to): Individuals, community service clubs, civic groups, the Navy League, and trade and professional associations.

(ii) Embarkation of media representatives on assignment is discussed in § 705.14.

(iii) Other categories may be established by the Secretary of the Navy, subject to the approval of the Secretary of Defense.

(2) It has also been demonstrated that the occasional embarkation on cruises of families and personal guests of naval personnel has contributed materially to the morale of the family circle and has instilled in each individual a sense of pride in his ship. For further information see OPNAVINST 5720.2G.

(3) Embarkations should be conducted within the framework of regularly scheduled operations; underway periods solely to accommodate guests are not authorized.

(4) Commander-in-Chief, Pacific Fleet, Commander-in-Chief, Atlantic Fleet, Commander-in-Chief, U.S. Naval Forces Europe, Commander Military Sealift Command (and their subordinate commands if so designated), Chief of Naval Education and Training, and District Commandants may authorize the embarkation of female civilians for daylight cruises. Embarkation of civilians for overnight cruises must be authorized by the Chief of Naval Operations via the Chief of Information.

(5) All guest visits are normally authorized on an unclassified basis.

(6) In all instances, due precautions must be taken for the safety of the guests. (See section 0403, pars. 6(b) and, 6(e), of the Navy Public Affairs Regulations, for procedures to be followed in the case of death of, or injury to, civilians embarked on naval ships.)

(7) For further information on policy, procedures, and eligibility criteria, see OPNAVINST 5720.2G.

(b) Authority. (1) Authority to establish procedures for the conduct of the embarkation of guests for public affairs purposes (including the Secretary of the Navy Guest Cruise and Guest of the Navy Cruise programs, which are discussed in § 705.24) is vested in the Secretary of the Navy. This authority is limited only insofar as the Chairman of the Joint Chiefs of Staff and the commanders of the Unified and Specified Commands (and their component commanders, if so designated) have the authority to use Navy ships to embark individuals other than news media representatives for public affairs purposes.

(i) Public affairs embarkations originating within the geographical limits of the Unified Command will be approved by and coordinated with the commanders of such commands. This authority may be delegated. Requests for such embarkations originating with the subordinate fleet or force command of a Unified Command will be submitted via the operational chain of command, to the appropriate commander of the Unified Command, unless delegated.

(ii) Requests for public affairs embarkations originating from any Navy source other than the Chairman of the Joint Chiefs of Staff, or the Unified and Specified Commanders or their subordinate commands, will be submitted to the Chief of Information, who will effect coordination with the Chief of Naval Operations and/or the Assistant Secretary of Defense (Public Affairs) as appropriate.

(iii) When guests debark in a foreign port which is in the geographic area of a Unified Command other than that in which the cruise originated, the Chief of Information will coordinate travel by obtaining concurrence of all appropriate commanders and the approval of the Chief of Naval Operations, and the Assistant secretary of Defense (Public Affairs) as appropriate.

(2) Officers in command to whom authority to embark guests for public affairs purposes is delegated will make maximum use of this authority.

(c) Secretary of the Navy Guest Cruise and Guest of the Navy Cruise Programs. (1) The objective of these two programs is: To expose top-level and middle-level opinion leaders in the fields of business, industry, science, education, and labor to the operation of the U.S. Navy, in order that they may gain a better understanding of its capabilities and problems, the complicated nature of modern sea-based equipment, and the high levels of responsibility and training required of Navy men and women.

(2) In addition to policy contained in paragraph (c)(1) of this section, the following policy guidelines apply to the conduct of the Secretary of the Navy Guest Cruise and the Guest of the Navy Cruise Programs.

(i) Secretary of the Navy Guest Cruise Program. (A) Only aircraft carriers and cruisers will be used.

(B) Cruises will be conducted once each quarter on each coast, contingent upon the availability of appropriate ships.

(C) The optimum number of guests is 15.

(D) Guests will be drawn from top-level executives and leaders who have not had previous exposure to the Navy. “Previous exposure” is defined as active or reserve service in the U.S. Navy or U.S. Marine Corps within the last 10 years; membership in the Navy League or any other Navy-oriented organization; or participation in a cruise on a U.S. Navy ship in the last 10 years.

(E) Whenever feasible, Secretary of the Navy Guests will be greeted by CINCLANTFLT or CINCPACFLT, or in their absence by the SOPA. Comprehensive unclassified briefings will be given dealing with the Navy's mission, fleet operations, and current problems.

(F) Cruises will vary in length from 3 to 7 days, when appropriate, to conform with the operating schedule of the ship.

(ii) Guests of the Navy Cruise Program. (A) All types of ships will be used. This will include carriers when available, after selection of a cruise for the Secretary of the Navy Guest Cruise Program.

(B) Guest of the Navy Cruise guests will be drawn from middle-level executives and leaders who have not had previous exposure to the Navy. Guests should include persons who have direct impact on recruiting, such as secondary school principals, guidance counselors, coaches and teachers.

(C) Cruises of relatively short duration (3 to 5 days) are preferred, although cruises up to 7 days are authorized. Protracted cruises will not be approved except for special circumstances.

(D) Invitations will be extended by the District of Commandants. Invitations will include:

(1) Statement of the purpose of the Guest of the Navy Cruise Program.

(2) Authorization for embarkation and, if applicable, for COD flights, with instructions for reporting on board.

(3) Name and rank of the commanding officer and, if applicable, name and rank of embarked flag officer.

(4) A caution that guests should not accept the invitation unless they are in good health.

(5) Statement to the effect that the tempo of operations might cause changes in scheduling which could result in the invitation having to be withdrawn.

(E) The following necessary information may be included separately with a letter of invitation: Recommended wardrobe, passport and immunization requirements, availability of emergency medical and dental facilities, ship's store and laundry facilities, statement that guest's use of a camera will be authorized subject to certain restrictions, and a listing of those restrictions. In addition, the following statement will be included with each invitation, or form part of the attached information sheets:

The Department of the Navy has no specific authority to use its funds to defray or reimburse any personal expenses of a navy guest. As a result, the Department of the Navy cannot provide you with transportation to the port of embarkation or from the port of debarkation back to your home. Your expenses for meals will be quite nominal while you are on board a naval ship or facility. You should make provision for any extraordinary expense which may arise. For example, if a personal or other emergency arises which necessitates your returning home during the cruise, you should be prepared to take commercial transportation at your own expense from the most distant point on the cruise itinerary.

Navy ships and aircraft, by their very nature, present certain hazards not normally encountered on shore. These hazards require persons on board to exercise a high degree of care for their own safety.

Acceptance of this invitation will be considered your understanding of the above arrangements and limitations.

(iii) Applicable to both programs. (A) Guests will provide their own transportation from home to the ship and return, and must reimburse the Navy for living and incidental expenses while embarked so that the program may be conducted at no additional expense to the government.

(B) Because the number of billets available to accommodate all of the potential guests is limited, the guest's opportunity to communicate his experience to his associates must be considered. For this reason, one of the criteria for selection of guests will be their level of activity in civic, professional, and social organizations. In nominating and selecting guests, effort will be made to ensure that minority citizens are included as appropriate.

(C) Atlantic cruises will be made on ships operating between East Coast ports, or between CONUS and the U.S. Caribbean ports of San Juan, PR, or Charlotte Amalie (St. Thomas), Virgin Islands. Pacific cruises will be made on ships operating between West Coast ports: Between CONUS and ports in Hawaii, Alaska, Mexico or Canada; or between ports within Hawaii or Alaska.

(D) Guests will be informed of security restrictions. Unclassified photography should be permitted on board, as pictures renew guests’ feelings of identification with a ship. Guests will be advised of areas, however, where photography is prohibited, and security regulations will be courteously but firmly enforced.

(E) Guests will be billeted in officers quarters and normally subsisted in the wardroom. It is not necessary that guests be assigned individual rooms. Billeting with ship's officers promotes mutual understanding, and guests feel more closely identified with the ship's company. They will be invited to dine at least once in each mess on board, if the length of the cruise permits. Guests will be encouraged to speak freely and mingle with the crew.

(F) Guests will be accorded privileges of the cigar mess commissioned officers mess (open) ashore—with the exception of package store privileges—and the use of ship's or Navy Exchange laundry and tailor shops. Other Navy Exchange privileges will be limited to purchase of items for immediate personal use.

(G) Only emergency medical and dental care will be provided and then only where civilian care is not conveniently available.

(1) In the event of injury to civilians embarked in Navy ships and aircraft or visiting naval activities, commanding officers will notify the Chief of information, the appropriate Commandant, and operational commanders, by message, of the injury and action taken.

(2) In the event of an emergency not covered by Navy Regulations, the facts and circumstances will be reported immediately to the Secretary of the Navy.

(H) Guests may be allotted time for side trips at their own expense when an itinerary includes naval activities or ports adjacent to recognized points of interest.

(I) As a souvenir of the cruise, it is suggested that guests be provided with a photograph of the ship, perhaps suitably inscribed by the commanding officer prior to debarkation.

(J) Any publicity will be limited to that initiated by the participants. Navy-sponsored publicity will be avoided unless sought by the participants. At the same time, media inquiries or inquiries from the general public will be answered fully, the purposes of the cruise program outlined and the fact stressed that no cost to the government is incurred.

(a) Navy exhibits are representations or collections of naval equipment, models, devices and information and orientation material placed on public display for information purposes before audiences at conventions, conferences, seminars, demonstrations, exhibits, fairs, or similar events. Also included are general purpose displays in public buildings or public locations. Museums also occasionally request a Navy exhibit on a permanent or temporary loan basis.

(1) Exhibits may be displayed in any appropriate location or event (including commercially owned spaces such as shopping centers, malls, etc.) provided it is clearly established that such areas are places the general public frequents and that the exhibit is not for the purpose of drawing the public to that location, and that it is determined that participation is in the best interests of the Department of Defense and the Department of the Navy.

(2) [Reserved]

(b) Exhibits will be used for the following purposes only:

(1) To inform the public of the Navy's mission and operations.

(2) To disseminate technical and scientific information.

(3) To assist recruiting of personnel for Navy military service and for civilian employment in the Department of the Navy.

(c) Exhibit requests and procedures:

(1) Requests for Navy exhibits, other than local exhibits may be forwarded to the Navy Recruiting Exhibit Center via the local Navy recruiter with an information copy to the Chief of Information. The primary mission of the Navy Recruiting Exhibit Center is to support local Navy recruiters. Requests for exhibits for community relations events will be considered favorably only when not in conflict with recruiting requirements.

(i) Requests for exhibits must be submitted well in advance of their proposed dates of use.

(ii) Requests for mobile exhibits requiring tractor-trailer transportation should be forwarded prior to November 15th previous to the year desired. A tour itinerary of mobile exhibits will then be established for the following year.

(iii) The period of time for which an exhibit is authorized will be determined by the nature of the event and the type of exhibit (e.g., equipment from local resources used for a local celebration would normally not be exhibited for more than three days; but, a formal exhibit at an exposition might remain for the duration of the event).

(2) The office of the Assistant Secretary of Defense (Public Affairs) is the approving authority for Navy exhibits in events of international or national scope, or those requiring major coordination among the Armed Forces, or with other agencies of the Federal Government.

(i) All Navy activities will forward such requests to the Chief of Information for coordination with the OASD (PA).

(ii) Subordinate commands of a Unified Command will forward exhibit requests of the above types to the Unified Commander concerned, via the chain of command.

(3) The official OASD(PA) Request Form for Armed Forces Participation will be used. See Armed Forces Request Form, § 705.36.

(4) Requests for exceptions to policy for exhibit displays should be forwarded to the Officer in Charge, Navy Recruiting Exhibit Center.

(5) Policy guidance on costs is defined in § 705.19.

(6) Occasionally, a project officer will be assigned to coordinate use of the exhibit with the sponsor.

(i) Project officers are normally commissioned officers, equivalent civilian personnel, local recruiters or reservists, who have been assigned the responsibility of coordinating Service participation in a special event.

(ii) The project officer should establish immediate liaison with the sponsor.

(iii) The project officer should assist in determining the actual location of the exhibit, make arrangements for assembling and disassembling the exhibit material, and supervise these operations.

(iv) The project officer will ensure Navy and Department of Defense policies are followed, and will coordinate local news releases concerning Navy participation.

(a) The center is a field activity of the Chief of Information and is located in the Washington Navy Yard. Its primary mission is to produce, transport and display U.S. Navy exhibits throughout the United States. It also facilitates assignments of Navy combat artists and, additionally, produces exhibits for its own tours and for short-term loans to naval commands.

(a) A center index of exhibits which are available at the local level in each Naval District is maintained by the exhibit center. To achieve maximum effectiveness for an overall integrated program, an up-to-date registry of all exhibits is required.

(a) The U.S. Navy has continued to record its military actions, explorations, launchings, etc., in fine art form since before World War II. The present Navy Combat Art Collection contains over 4,000 paintings and sketches. A significant number of new works is being added each year. The combat artists of World War II have been replaced by civilian artists who witness today's Navy in action, record their impressions, and donate their works of art to the Department of the Navy.

(1) The voluntary services of most of the artists are arranged through the Navy Art Cooperation and Liaison Committee (NACAL) which operates in close cooperation with the Salmagundi Club of New York City and the Municipal Art Department of the City of Los Angeles.

(2) The Chief of Information has established liaison with the Salmagundi Club in order to maintain a continuing historical record of the Navy. Organized in 1871, the Salmagundi Club is the oldest club of professional artists in the United States. The Club appointed a Navy Art Cooperation and Liaison (NACAL) Committee to advise the Navy on art matters and to nominate artists for assignment to paint Navy activities through the world. The Chief of Information reviews the nominations, and issues SECNAV invitational travel orders to each artist approved.

(3) The following policy pertains:

(i) All finished art portraying the Navy and produced by Navy artists on active duty for that purpose and by guest artists working under invitational travel orders becomes the property of the Department of the Navy.

(ii) Civilian artists selected to paint Navy life through cooperation of a private sponsor and the Chief of Information may be authorized by the Chief of Information or the Office of the Secretary of Defense to retain their works.

(iii) Paintings, sketches, drawings and other forms of artwork will not be accepted by the Department of the Navy unless all reproduction rights are surrendered and unless they become the permanent property of the Department of the Navy.

(iv) Requests for reproduction of combat art for use in advertising or publication will be directed to the Chief of Information.

(b) Responsibilities:

(1) The Chief of Information exercises supervision and control of the Navy Art Program and issues SECNAV invitational travel orders and letters of invitation to artists selected for assignment.

(2) When directed by the Chief of Information or other appropriate Navy authority, a NACAL project officer will perform the following functions:

(i) Act as a local liaison officer for the NACAL Program.

(ii) Assist NACAL artists on assignments within his area.

(3) The Curator Navy Combat Art Center, in coordination with the Chief of Information, will:

(i) Plan trips for the NACAL Program.

(ii) Approve requests for art displays.

(iii) Provide logistic support for the maintenance, storage, shipment and display of the Navy Combat Art Program.

(c) Requests for art displays should be forwarded to the Director, Community Relations Division, Office of Information, Navy Department, Washington, DC 20350.

(d) Exhibition of Navy Art:

(1) Operation Palette I” is a carefully selected group of 75 to 100 combat art paintings depicting Navy and Marine Corps activities during World War II. The schedule of “Operation Palette I” is promulgated by the Officer-in-Charge, Navy Recruiting Exhibit Center and supervised by the Chief of Information, with the concurrence of District Commandants. Schedules are arranged so that the exhibition travels within a particular Naval District for several months at a time. District Commandants designate project officers for each city where “Operation Palette I” is exhibited. The project officer makes all arrangements, including suitable location, publicity and personnel to assist the chief petty officer who travels with the collection. Promotional kits are provided by the Officer-in-Charge, Navy Recruiting Exhibit Center. Requests for exhibitions are not desired, since the collection always travels on a prearranged tour.

(3) Other exhibitions of original paintings from the Combat Art Collection may be scheduled on request by either Navy commands or civilian art groups. Requests should be directed to the Director, Community Relations Division, Office of Information, Navy Department, Washington, DC 20350 and contain the following:

(i) The occasion.

(ii) Inclusive dates. (Not less than 10 days or more than 90 days sub-custody.)

(iii) Expected attendance and type of publicity planned.

(iv) Amount of space allotted.

(v) If Navy-sponsored show, certification that 24-hour security will be provided for the paintings while in custody.

(vi) If civilian-sponsored show, statement that transportation and insurance requirements will be met. (Physical security must be available for exhibit, with an attendant on duty during open hours and locked building or other means of protecting exhibit when closed to the public.)

(e) Navy Combat Art Lithograph Program:

(1) This program makes available full color, high quality lithographs which are faithful reproductions of the original artwork on quality paper of selected works of art from the Navy Art Collection.

(2) Additional information and ordering details are contained in CHINFO NOTICE 5605, which is issued periodically.

(a) This program is devised by the Navy to give students at colleges and universities conducting teacher training a comprehensive background in the field of aviation. The teachers in turn integrate this knowledge into their education programs.

(b) Appropriate commands are encouraged to provide assistance to educational institutions sponsoring the workshop program: Provided, That such support does not interfere with the command's primary mission and that such cooperation involves no additional expense to the government.

(c) The Chief of Naval Operations has cognizance of all assistance provided by the Navy to all Aerospace Education Workshop program. A summary report of local command participation in Aerospace projects will be submitted to the Chief of Naval Operations via the appropriate chain of command. Information copies of such reports will be sent to Commander, Navy Recruiting Command and the Chief of Information. For further information see OPNAVINST 5726.1C.

§ 705.31USS Arizona Memorial, Pearl Harbor.

(a) Limited space and the desirability of keeping the Memorial simple and dignified require the following practices to be observed:

(1) Rendering of formal ceremonies on the USS Arizona Memorial will be confined to Memorial Day.

(2) Observances on December 7, or any other date, at the request of individuals or organizations, will consist of simple wreath-laying, or other appropriate expressions conducted with dignity.

(3) Plaques intended for display on the Memorial may be presented by headquarters of national organizations only. Plaques from regional, state or local organizations cannot be accepted. Only one plaque will be accepted from any organization. The overall size of the plaques, including mounting, must be no larger than 12 inches square.

(b) The Commandant, Fourteenth Naval District, is designated to coordinate all formal or informal observances involving the Memorial.

§ 705.32Aviation events and parachute demonstrations.

(a) Armed Forces aircraft and parachutists may be authorized to participate in appropriate in public events which meet basic Department of Defense criteria. This participation may be one of the officially designated military flight or parachute demonstration teams, flyover by aircraft, a general demonstration of capabilities by aircraft, or the static display of aircraft.

(b) Events which are appropriate for aviation participation include: Dedication of airports; aviation shows; aircraft exposition; air fairs; recruiting programs; civic events which contribute to the public knowledge of naval aviation equipment and capabilities and to the advancement of general aviation; public observances of certain national holidays (Armed Forces Day, Veterans Day, Memorial Day and Independence Day); national conventions of major veterans organizations; memorial services for deceased, nationally recognized dignitaries; and receptions for foreign dignitaries.

(c) Support of Armed Forces recruiting is the primary purpose of military flight and parachute demonstration teams. Armed Forces recruiting teams are available to assist sponsors in coordinating advance publicity and information coverage to insure maximum exposure for the demonstration team and the event. This assistence is at no additional expense to the sponsor; however, the sponsor is required to give full support to the recruiting effort and to cooperate fully with local service officials. Such support could include (but is not limited to) the provision of prime space for recruiters at the event site and the provision of courtesy passes in controlled quantities to recruiters for the purpose of bringing recruit prospects and recruiting advisors to view the show.

(d) DOD support of air show fund raising efforts in the form of provision of military flight and parachute demonstration teams is limited to charities recognized by the Federal Services Fund-Raising Program. These include such agencies as the United Givers Fund, Community Chests, National Health Agencies (as a group), International Service Agencies and the military aid societies. Armed Forces support to fund-raising events for a single cause, even though the charity is a member of a federated or joint campaign or donates in part to one or several of the campaigns, is inconsistent with the basic position of Department of Defense. The name of the nearest Combined Federal Campaign coordinator will be supplied to the sponsor, or if he chooses, he might elect to work with the local United Givers Fund (Community Chest). As a minimum, the sponsor must agree to provide at least half of the profit above costs to the Combined Federal or United Givers Campaigns to receive Armed Forces support.

(e) Request form. This form is used to request military flight and parachute demonstration team participation in public events. The information is required to evaluate the event for appropriateness and compliance with Department of Defense policies and for coordination with the units involved.

General1. Title of EventTown or City: _______ State:Date: ________ Time—From:To: ____ Place: (Airport, etc.)2. Sponsor:3. The sponsor (is) (is not) a civic organization and the event (does) (does not) have the official backing of the mayor.4. The sponsoring organization (does) (does not) exclude any person from its membership or practice any form of discrimination in its functins, based on race, creed, color or national origin.5. Sponsor's representative authorized to complete arrangements for Armed Forces participation and responsible for reimbursing Department of Defense for accrued expenses when required:Name:Address:City, State: _________ Zip:Telephone: (Office) ____ (AC)(home) __________ (AC)6. Purpose of this event (explain fully):7. Expected attendance:8. Is this event being used to promote funds for any purpose?9. Admission charge:“Charge for seating:10. Disposition of profits which may accrue:11. Will admission, seating and all other accommodations and facilities connected with the event be available to all persons without regard to race, creed, color or national origin?12. Will the standard Military Services allowance for quarters and meals be provided by the sponsor for Armed Forces participants?13. Will transportation at sponsor's expense be proviced for Armed Forces participants between the site of this event and hotel?14. Will telephone facilities, at sponsor's expense, be made available for necessary official communications regarding the event?15. It may be necessary for representatives of the requested unit to visit the site prior to the event. Will transportation, meals and hotel accommodations be provided by the sponsor?16. Please describe the space which will be provided to recruiters:17. Designate charity beneficiary(s):Flight Team, Parachute Team, Flyovers, Statics1. This request is for (check appropriate line):Flight Team DemonstrationU.S. Navy Blue AngelsU.S. Air Force Thunderbirds. (Cost for either team is $1500.00 for each day team scheduled at your event.)Aircraft Flyover: (No cost to sponsor.)Static Aircraft: (Cost is $25.00 per day per crewmember.)U.S. Army Silver Eagles: (Cost for this team is $750.00 for each day team scheduled at your event.)Parachute Team Demonstration U.S. Army Golden Knights: (Cost is $25.00 per day per man for each day required to support your event. Team consists of 10-14 personnel.)(Other)2. Flight and/or Parachute Team demonstrations are restricted to appropriate events at airports, over open bodies of water, or over suitable open areas of land. Please give the specific location of your eventIf an airport, name of airdrome facility and longest usable landing runway. Airport:Runway data:______________feet.3. Flyovers, Flight and Parachute Team demonstrations require that sponsors secure FAA clearance or waiver. Will steps be taken by sponsor to accomplish this at least sixty days prior to the event?4. Flight and Parachute Team demonstrations must adhere to FAA regulations which specify that spectators not be permitted within 1500 feet of an area over which the flight demonstration takes place, or 250 feet of the jump area over which parachutists are performing. What type of crowd control is planned?5. Flight and Parachute Team demonstrations require that an ambulance and a doctor be on the site during the demonstration. Will this requirement be met?6. Flight and Parachute Team demonstrations require that the sponsor provide a recent aerial photograph, taken vertically from an altitude of 5,000 feet or higher, to the team(s) giving the demonstration. Will this requirement be met?7. Flight Team demonstrations and Static Aircraft displays require that the sponsor provide suitable aircraft fuel (JP jet fuel or aviation gas, as appropriate) and pay the cost of transporting and handling this fuel, if it is not available at the staging airport under military contract prices. Will this requirement be met?8. Flight Team demonstrations and Static Aircraft displays require mobile firefighting, crash and ground-to-air communications equipment at the demonstration site. Will this requirement be met?9. Flight Teams and Static Aircraft displays require that the sponsor provide guards for the aircraft that land and are parked at the site during their entire stay. Will this requirement be met?10. Parachute Team demonstrations may require that the sponsor arrange aircraft transportation from the team's home base to the location of the event, for use as a jump platform and return to the home base. Will this requirement be met, if necessary?11. Name and address of any Armed Forces representative or government official with whom you have discussed possible participation:Certification

I certify that the information provided above is complete and correct to the best of my knowledge and belief. I understand that representatives of the Military Services will contact me to discuss arrangements and costs involved prior to final commitments.

Signature:(Sponsor's Representative)Date of Request:Return this form to:

(f) Definitions. A flight team demonstration is an exhibition of precision aerial maneuvers flown by the official Department of Defense military flight demonstration teams, the U.S. Air Force Thunderbirds, the U.S. Navy Blue Angels and the U.S. Army Silver Eagles. An aircraft demonstration is a flight demonstration by aircraft other than those of the teams listed above and designed to portray tactical capabilities of aircraft by a single aircraft (i.e., the U.S. Marine Corps “Harrier”) or group of aircraft, including air-to-air refueling, helicopter hover and pick-up or rappelling capabilities, Low Altitude Parachute Extraction System, maximum performance take-off, etc. A parachute demonstration is an exhibition of free-fall and precision landing techniques by the official DOD parachute team, the U.S. Army Golden Knights. Other parachute demonstrations can be performed by the U.S. Navy Parachute Team, or another unofficial team or sports parachute club representing the Department of Defense. A flyover is a flight of not more than four aircraft over a fixed point at a specific time and does not involve precision maneuvers or demonstrations. Flyovers are authorized for certain events when the presence of Armed Forces aircraft overhead would contribute to the effectiveness of the event based on a direct correlation between the event and the aircraft. Flyovers can also be authorized for occasions primarily designed to encourage the advancement of aviation and which are of more than local interest. Flyovers by any of the official DOD flight teams are not authorized. Parades are not considered an appropriate event for authorizing flyover support. The static display of aircraft is the ground display of any military aircraft and its related equipment, not involving flight, taxiing or starting of engines.

(g) Events which are appropriate for Armed Forces aviation participation in the public domain include such activities as dedication of airports and facilities, aviation shows, expositions, and fairs; and other civic events which contribute to the public knowledge of the U.S. Military Services aviation equipment and capabilities. The number one priority for utilization of military aircraft and parachutists in such events in the public domain is to support the recruiting aspects of the all-volunteer force concept. The approval of any such military demonstration will only be authorized if a maximum recruiting benefit exists at each location.

(h) Costs. (1) The cost for either the United States Air Force Thunderbirds or the United States Navy Blue Angels will be $1500 for each day a demonstration is scheduled. If the United States Army Golden Knights precision parachute team is scheduled for your event, the cost will be $25 per man per day for each day required to support your event, to include the days of travel if required. Under normal conditions, this group is comprised of fourteen members: Nine jumpers, three aircraft crewmen, one ground controller, and a narrator. The sponsor will be advised by the Golden Knights in advance of the costs related to his event for which the government must be reimbursed. The United States Army Silver Eagles helicopter team, composed of seven helicopters, performs precision formation manuevers and solo helicopter aerobatics to demonstrate the capabilities of modern helicopters and the skill of Army aviators. The Silver Eagles performance lasts about 30 minutes and is conducted entirely in full view of spectators on the crowd line. The cost for the team is $750 for each day a demonstration is scheduled. The sponsor should make a check payable to the Treasurer of the United States for the required amount and present it to the appropriate demonstration team commander in advance of the scheduled event.

(2) Costs associated with static aircraft are normally $25 per day for each crew member plus possible fuel requirements discussed below. Charges for any other military parachuting demonstration (i.e., U.S. Navy Parachute Team, local Armed Forces sport parachute clubs, etc.) will depend on the number of personnel and transportation involved. Checks payable to the Treasurer of the United States should be made available to the appropriate aircraft commander for static displays or parachute team commander upon arrival at the event.

(i) As noted in the Department of Defense request form, the sponsor is required to pay per diem costs for team and static display crew members except for flyovers or aircraft demonstrations not involving landing.

(3) These costs are binding after a team or crew personnel have arrived at the show site, even though weather conditions or other unforeseen circumstances force the event to be cancelled. These funds provided by the sponsor will be utilized by team members or crew personnel for paying housing and subsistence costs. The actual breakdown of the per diem involved is $13.20 for housing, $9.30 for subsistence, and $2.50 for incidental expenses. In those locations where housing and subsistence cannot be procured for these amounts, it will be the responsibility of the sponsor to absorb the additional cost. As stated, these costs will cover participation but does not include certain ground support requirements (i.e., ground transportation, telephone, etc.) to be furnished by a sponsor as outlined in a team support packet.

(4) Other costs that could be incurred by the sponsor are in the area of the sponsor's agreement to provide suitable aircraft fuel (defined as JP jet fuel or aviation gas and lubricants) at U.S. Government contract prices. Where fuel is available from local military stocks—usually military installations—or when fuel is available from commercial into-plane contract locations, the U.S. Government will pay all fuel costs. If military contract fuel is not available at the show site, the sponsor will be required to pay all costs above the contract price and that price charged by the local supplier. However, the sponsor may choose to transport military contract fuel from a military base or a commercial airport having a U.S. Government into-plane contract. In this case, his cost would be only the transporting and handling of this fuel to the show site.

(5) The Department of Defense no longer requires the sponsor to provide the Department with a public liability and property damage insurance policy. This should in no way deter the sponsor from obtaining such liability and property damage insurance he feels is necessary for his own protection. Due to the costs that could accrue to the sponsor in case of cancellations because of inclement weather, the sponsor may wish to consider rain insurance to protect his investment. Previous sponsors have advised us that such insurance is available from most commercial companies.

(i) Other information. (1) Flight and/or parachute team demonstrations are restricted to appropriate events at airports, over open bodies of water, or over suitable open areas of land. For the U.S. Air Force Thunderbirds or U.S. Navy Blue Angels to operate from an airport show site, the following operational requirements must be met:

(i) Minimum useable runway length for the Thunderbirds is 5000 feet by 150 feet in width.

(2) A staged performance may not be given if the location planned for the show site does not meet these minimums. The maximum distance for a staged performance” under normal conditions is 50 nautical miles. It should be noted that staged performances are seldom authorized since the recruiting potential is reduced at such events.

(3) The type and number of static and/or flyover aircraft which may be assigned is entirely dependent upon the Military Services’ capability to provide such resources at the time of your event. This capability is affected by operational commitments and sponsors are advised that confirmation of static/flyover aircraft cannot be made by the appropriate Service more than 15-30 days before your event.

(4) The U.S. Army Silver Eagles are normally restricted to performances at airports. Other open land areas may be operationally suitable but require the prior approval of the team commander in each case.

(5) Only one flight demonstration team and a parachute demonstration team may be authorized for any one event. Military aircraft demonstrations may not be authorized for events on the days a flight team is participating. A flyover is not authorized when a flight team is participating unless it can be provided by a locally-based National Guard or Reserve component.

(6) Participation by the U.S. Navy Blue Angels and the U.S. Air Force Thunderbirds is normally limited to two consecutive years in any one event. This usually involves one appearance by each of the two flight teams. This provision may be waived when other appropriate requests have not been received, when the team is performing in the same geographical area and has open dates or when the event is national or international in nature and participation would be in the best interests of Department of Defense. Participation in an event is normally limited to two days unless a third day can be included without preempting other requests.

(7) Sponsors are required to obtain a Federal Aviation Agency (FAA) waiver for any demonstration by military aircraft and/or parachutists in the public domain. The final authorization for such Armed Forces participation hinges upon the sponsor securing this waiver far enough in advance to permit adequate planning (normally not later than 60 days prior to the event). Further guidance on the details of obtaining this waiver will be contained in the team support packet or FAA. FAA regulations require that spectators be confined 1500 feet from a flight or aircraft demonstration and 250 feet from a parachute demonstration.

(i) In some cases, parachute demonstrations require that the sponsor arrange for appropriate transportation for the team and equipment from its home station to the event and return.

(ii) Mass parachute jumps, drops of equipment, assault aircraft demonstrations, or tactical helicopter troop landings under simulated tactical conditions, will be limited to military installations. These activities, except those scheduled as part of regular training programs, are not authorized for public events in the civil domain.

(8) When civilian air racing is involved in an event where Armed Forces participation has also been scheduled, prize monies must come from sources other than admission charges.

(9) Flight team, parachute and aircraft demonstrations also require that the sponsor provide: (i) Recent aerial photograph of the site; (ii) an ambulance and doctor at the site; and (iii) Guards for the Armed Forces aircraft during their entire stay. The aerial photograph should be recent, taken vertically from at least 5,000 feet.

(10) Maximum advantage of Armed Forces recruiting will be taken at appropriate events in the public domain where demonstrations by military aircraft and parachutists have been authorized.

(11) Exception to the policies contained herein will only be considered by OASD(PA) on events of national or international significance.

(12) Department of Defense hosts a scheduling conference in mid-December each year to prepare U.S. Air Force Thunderbirds, U.S. Navy Blue Angels, U.S. Army Golden Knights and U.S. Army Silver Eagles participation schedules for the ensuing year. All requests for such demonstrations from sponsors should reach OASD(PA) prior to the middle of November each year to be considered at this conference. In order to accommodate many requests Department of Defense receives for other parachuting demonstrations, aircraft demonstrations, static aircraft displays, and flyovers, each request must be received by OASD(PA) a minimum of 30 days in advance of the event and preferably 60 days in advance.

(13) If there are any points that a member of the public might wish to have clarified, contact Chief, Aerial Events Branch, OASD(PA), Room 1E790, The Pentagon, Washington, DC 20301. Telephone: AC (202) 695-6795 or 695-9900.

§ 705.33Participation by Armed Forces bands, choral groups, and troops in the public domain.

(a) Military musical participation in public events which otherwise meet the criteria outlined herein will be limited to patriotic programs as opposed to pure entertainment and will not duplicate a performance within the capability of a civilian group. For example, music to accompany the presentation of the national colors, or a performance of military or patriotic music by a military band, drum and bugle corps or choral group may be authorized; background, dinner, dance or other social music is considered “entertainment.”

(b) Requests received for military musical participation in appropriate events in the civilian domain must include an indication from the sponsor that there is no conflict with the local civilian musicians concerning the appearance of Navy musicians. A statement to this effect from the cognizant local musicians’ union must be obtained by the sponsor and attached to his request.

(c) Armed Forces musical units may be authorized to provide certain specified musical programs in the public domain. The performance must not place military musicians in competition with professional civilian musicians. Background, dinner, dance or other social music cannot be authorized. The specified programs which may be authorized usually include a short opening or closing patriotic presentation. Musical selections normally consist of a medley of military or patriotic songs, honors to the President or Vice President (if he is there), or music to accompany the presentation of colors by a Color Detail.

(1) Armed Forces musical units may be authorized to participate in official government, military and civic functions.

(i) Official government functions include those in which senior officials of the Federal government are involved in the performance of their official duties.

(ii) Official military functions include social activities held on military installations (or off when the Military Service certifies that suitable facilities are not available on post) which are sponsored by the Military Services, have as their principal purpose the promotion of esprit de corps, and are conducted primarily for active duty personnel and their guests.

(iii) Official civic functions include such State, county or municipal events as inaugurals, dedication of public buildings and projects, the convening of legislative bodies, and ceremonies for officially invited government visitors.

(2) Armed Forces musical units may also be authorized to provide patriotic and military programs at national conventions and meetings of nationally-recognized civic, patriotic and veterans organizations.

(d) Bands, drill teams and other units can normally participate at no cost to the sponsor if the event is within the installation's immediate community relations area (approximately 100-mile radius).

(1) Normally, not more than one band or other musical unit will be authorized for a parade in the civilian domain. This guidance intended to assure widest possible participation in public events of local interest (particularly on national holidays) does not apply to national convention of veterans’ groups or other events having national significance.

(2) All Armed Forces participation in international and national events, and in the Washington, DC area, must be authorized by the Assistant Secretary of Defense (Public Affairs).

(3) Requests for Armed Forces musical or troop units when no military installation is accessible, or for the Washington, DC-based ceremonial bands or troop units (when the event is outside the Washington, DC area), should be addressed to the parent Service of the unit:

(I) U.S. ArmyChief of Public Information, Department of the Army, Washington, DC 20310.(II) U.S. NavyChief of Information, Code OI-321, Department of the Navy, Washington, DC 20350.(III) U.S. Air ForceDirector of Information, Secretary of the Air Force, Community Relations Division, Washington, DC 20330.(IV) U.S. Marine CorpsCommandant of the Marine Corps, Code AG, Headquarters, U.S. Marine Corps, Washington, DC 20380.

(4) Armed Forces units may not be authorized to participate when:

(i) The event directly or indirectly endorses or selectively benefits or favors (or appears to do so) any private individual, commercial venture, sect, fraternal organization, political group, or if it is associated with solicitation of votes in a political election.

(ii) Admission, seating and other accommodations or facilities are restricted in any manner with regard to race, creed, color or national origin.

(iii) The sponsoring organization or group excludes any person from its membership or practices any form of discrimination in its functions, based on race, creed, color or national origin.

(iv) An admission charge is levied on the public primarily to see participation by an Armed Forces unit.

(v) There is fund-raising of any type connected with the event, unless all profits are to be donated to a charity which is one of the consolidated programs recognized by the Federal Services Fund-Raising Program. These are the United Givers Fund Community Chest, National Health Agencies (as a group), the International Service Agencies, and the American Red Cross (when not included in a consolidated campaign). The Military Services’ Welfare Societies (Army Emergency Relief, Navy Relief and Air Force Aid Society) are also included.

(5) Sponsors of an event must agree to reimburse the Military Services concerned for transportation and per diem when participation is authorized at no additional cost to the government.

(6) Participation by Armed Forces musical units in other areas is within the authority of local military commanders, and requests for participation should be made directly to those local military installations. All requests should be submitted no earlier than 60 days and preferably no later than 45 days prior to the event.

§ 705.34Other special events.

(a) Ship visits. Requests for visits generally originate with civic groups desiring Navy participation in local events. Often, members of Congress endorse these requests, advising the Navy of their interest in a particular event. Because of the marked increase in requests for ship visits, and in order to give equal consideration to all requests, the Chief of Information has arranged for quarterly meetings of representatives from CHINFO, Commander, Navy Recruiting Command, Chief of Naval Operations and Chief of Legislative Affairs. Based on the importance of the event (nationally, regionally, or locally) location, and prospective audience, recommendations are consolidated and forwarded to the fleet commanders prior to their quarterly scheduling conferences.

(b) Visits to Naval activities—(1) Types of visits. (i) General visits or Open House are occasions when a ship or station acts as host to the general public. These visits will be conducted in accordance with instructions issued by Fleet and Force Commanders, District Commandants, or other cognizant authority.

(ii) Casual visits are visits to ships or stations by individuals or specific groups, as differentiated from the general public. Details and procedures concerning these visits are a matter of command discretion.

(iii) Tours are occasions when a ship or station is host to a specific group on a scheduled date. Some of the larger shore commands also regularly schedule one or more sightseeing type tours daily during seasons when many vacationers ask to visit the command.

(2) General rules. Prior approval for general visiting or Open House at any time other than civic-sponsored public observances and official ceremonies for Armed Forces Day, memorial Day, Independence Day, and Veterans Day, and for observances in overseas areas of similar significant holidays, will be requested as follows: Fleet units visiting U.S. ports, from Senior Officer present Afloat; fleet units visiting foreign ports, from commander ordering the visit; shore stations and district vessels in the United States, from District Commandants; and overseas shore stations, from the naval area commander.

(c) Official functions. (1) Navy units may be authorized by local commanding officers to participate in official government military and civic functions, except in the Washington DC area where OASD(PA) retains authority.

(2) Official government functions include those in which senior officials of the federal government are involved in the performance of their official duties.

(3) Official military functions include social activities held on military installations (or off, when it is certified that suitable facilities are not available on base), which are sponsored by the Navy, have as their principal purpose the promotion of esprit de corps, and are conducted primarily for active duty personnel and their guests.

(4) Official civic functions include such state, county or municipal events as inaugurals, dedications of public buildings and projects, and convening of legislative bodies and ceremonies for officially invited government visitors.

(5) Overseas, similar functions attended by comparable host-country officials in their official capacities might also be considered appropriate for Navy participation.

(d) A parade which is sponsored by the community as a whole (rather than by a single commercial venture) and held on a Sunday or holiday or at a time when shops are closed for business may be a public event for which participation could properly be authorized; representation by individual commercial ventures in such parades need not be a bar to Navy participation as long as the emphasis is planned and placed on the civic rather than commercial aspects. Such participation will be at no additional cost to the government.

(e) Fund-raising events. (1) Navy support of fund-raising events must be limited to recognized, joint or other authorized campaigns. Navy support of fund-raising events or projects for a single cause, even though the cause is a member of one of the federated, joint or authorized campaigns, or donates in part to one of several of the recognized campaigns, is not authorized by Department of Defense.

(2) Navy support for a single-cause fund-raising event may be authorized if the event is:

(i) In support of Navy recruiting objectives;

(ii) Supported by a letter indicating the local United Way representative has no objection; and

(iii) Approved by the local Navy Commander as a single-cause charity which has broad local benefit.

(a) Requests for bands, troops, units, teams, exhibits and other Armed Forces participation should be addressed to the nearest military installation. Local commanders have resources which they can commit to appropriate events if mission requirements permit. If no military installation is accessible, or if resources requested are not available locally or require approval by higher authorities, a standard Department of Defense Request Form should be completed. This form is used to evaluate the request, determine appropriateness of the event and compliance with Department of Defense policies, and eliminate repeated correspondence. The request form should be returned to the office or military command from which it was received unless another address is indicated.

(b) Basic criteria governing Armed Forces participation in public events have been developed by the Department of Defense to ensure compliance with public law, to assure equitable distribution of resources to as many appropriate events as possible, and to avoid excessive disruption of primary training and operational missions of the Military Services. the following general rules and information are included as an aid to you in understanding Department of Defense policies and in planning programs of mutual benefit to the Armed Forces and your community.

(1) When evaluating requests for Armed Forces participation in public events, the interests of the Department of Defense and the public at large, operational requirements of the Military services, and availability of resources are prime considerations. Commitment of resources to specific events must be balanced with the above factors and with requests for similar participation received from other sources.

(2) Department of Defense participation and cooperation must not directly or indirectly:

(i) Endorse or selectively benefit or favor or appear to endorse or selectively benefit or favor any private individual, group, corporation (whether for profit or nonprofit), sect, quasi-religious or ideological movement, fraternal organization, political organization, or commercial venture.

(ii) Be associated with the solicitation of votes in a political election. Sites such as commercial theaters or department stores, churches or fraternal halls; and events such as testimonials to private individuals or sectarian religious services, are generally inappropriate for Armed Forces participation.

(3) Participation by the Armed Forces in any event or activity may be authorized only if admission, seating and all other accommodations and facilities are available to all without regard to race, creed, color or national origin, and only if the sponsoring organization does not exclude any form of discrimination based on race, creed, color or national origin. This does not bar participation in events sponsored by nationally-recognized veteran's organizations when the program is oriented toward the veterans’ interests, nor does it bar participation in non-public school events when the program is directed toward education or recruiting.

(i) No admission charge may be levied on the public solely to see an Armed Forces demonstration, unit or exhibit. When admission is charged, the Armed Forces activity must not be the sole or primary attraction.

(4) Armed Forces participation is authorized in a fund-raising event only when the sponsor certifies that all net profits in excess of actual operating costs will be donated to one of the consolidated programs recognized by the Federal Services Fund-Raising program. These include such agencies as the United Givers Fund, Community Chests, National Health Agencies (as a group), International Service Agencies and the military aid societies.

(5) When Armed Forces participation in an event is in the mutual interest of the Department of Defense and the sponsor of the event, participation will be authorized at no additional cost to the government. Additional costs to the government—travel and transportation of military personnel, meals and quarters or standard per diem allowance, etc.—will be borne by the sponsor.

(6) Department of Defense policy prohibits payment by the Armed Forces for rental of exhibit space, connection of electricity, or utility or janitorial costs.

(7) The duration of participation by military units in any one event is limited in the interests of proper utilization and equitable distribution of Armed Forces manpower and resources. While an exhibit might be scheduled for the duration of an event, a unit such as a military band is limited to three days.

(8) Armed Forces participation in professional sports events and post-season bowl games will normally be authorized at no additional cost to the government, will emphasize joint Service activity and must support recruiting programs. Participation in beauty contests, fashion shows, pageants, Christmas parades, and motion picture premieres is not authorized since military support would violate policy and appropriateness.

§ 705.36Government transportation of civilians for public affairs purposes.

(a) General policy. (1) Regulations on transportation of civilians vary according to whether:

(i) The civilians are news media representatives or not.

(ii) The travel is local or nonlocal (see paragraph (b) of this section).

(iii) The purpose of the travel is to get to a desired destination or is to observe the Navy at first hand.

(2) Authority for embarkation of individuals in naval vessels and military aircraft is vested in the Chief of Naval Operations by § 700.710 of this chapter. Nothing in this part shall be construed as limiting his authority in this regard.

(3) The following policy has been established by DOD for providing all types of Navy transportation to non-Navy civilians.

(i) Military transport facilities shall not be placed in a position of competition with U.S. commercial carriers.

(A) When embarkation of a newsman is necessary for him to obtain news material about a ship, aircraft, cargo or embarked personnel, or when he is invited to report on a matter of special interest to the Navy, it is not considered that the transportation furnished him is in competition with commercial transport.

(B) An exception is also made for short trips between an airport (or other transportation center) and the command. Cars and buses within the resources of the command may be used for meeting guests or taking them to make their travel connections.

(ii) When authorization is requested for travel which is of interest to or will affect more than one command or Service, the approving authority will coordinate the request with all other interested commands, Services and Agencies.

(iii) Travel in connection with any public affairs program arranged by the Navy jointly with another Federal Department or Agency or a foreign government will be authorized only by the Assistant Secretary of Defense (Public Affairs, or those to whom he has delegated this authority. Navy commands desiring authorization of such travel will forward the request to the Chief of Information.

(iv) If a request for travel for nonlocal public affairs purposes is disapproved, sufficient reasons should be provided so that the action is clearly understood by the individual or group concerned.

(b) Definition of local v. nonlocal travel. (1) Local travel is travel within the immediate vicinity of the command concerned in connection with a public affairs program of local interest only. (For air travel within the continental U.S., about 150 miles or less is generally considered local.)

(2) Nonlocal travel is that conducted in connection with a public affairs program affecting more than one Service, geographic area or major command, usually of primary concern to higher authority.

(c) Transportation of news media representatives. (1) This section applies to media representatives who are embarked for the purpose of news gathering or of traveling to an area in order to cover a news event. It does not apply to:

(i) Correspondents when members of groups embarked as regular cruise guests of the Navy.

(ii) Casual trips by correspondents to ships in port or to shore stations in CONUS. Such visits may be authorized by officers in command or higher authority in accordance with instructions promulgated by the Chief of Naval Operations. Written orders are not required.

(2) Local travel. Commanding officers at all levels are authorized (under Defense Department policy) to approve local travel for public affairs purposes within the scope of the mission and responsibilities of their command, if:

(i) Public interest in the public affairs purpose involved is confined primarily to the vicinity of that command.

(ii) The travel is being provided for the benefit of local media and meets a naval public affairs objective.

(iii) Scheduled commercial air transportation is not readily available.

(iv) The aircraft to be used is a helicopter, or multiengine dual piloted aircraft, and is within the resources of the host command on a not-to-interfere basis. This provision does not apply to orientation flights.

(3) Nonlocal travel. (i) Requests for nonlocal travel will be submitted to the Chief of Information, who will forward them with his recommendations to the Chief of Naval Operations and/or the Assistant Secretary of Defense (Public Affairs), as appropriate.

(ii) When the proposed travel is for news coverage of a major emergency nature and the coverage will be impaired or delayed, to the serious detriment of the interests of the Department of Defense, if military transportation is not provided, requests for such travel will be submitted to the Chief of Information, who will forward the request—if approved—to the Assistant Secretary of Defense (Public Affairs). The most expeditious means (including telephone) will be used by commands requesting such emergency travel. Justification will include both the public affairs purpose and the necessity for military carriers.

(4) Travel between the U.S. and overseas area. (i) The Chief of Naval Operations may authorize military transportation for correspondents in unusual circumstances, upon recommendations of the Chief of Information and the Defense Department.

(ii) Requests for government transportation to cover specific assignments overseas should be made at least three weeks prior to the date required and should be addressed to the Assistant Secretary of Defense (Public Affairs) via the Chief of Information or Unified Commander, as appropriate. The requests should include:

(A) A statement that the correspondent is a full-time employee, or has a specific assignment, and that the trip is for the purpose of news gathering.

(C) Assurance that the correspondent will observe currency control regulations, and sponsoring agency will guarantee financial obligations incurred.

(5) Embarkation of male correspondents between ports within CONUS. (i) Male correspondents may be embarked in naval ships for passage between ports within the area of a single Fleet command for the purpose of news gathering at the discretion of the Sea Frontier Commander, Commandants of the Naval Districts, the Chief of naval Air Training, Fleet, Force and Type commanders and flag officers afloat who have been delegated authority to arrange directly with appropriate Fleet, Force and Type commanders for embarkation of civilians on a local cruise basis.

(ii) Invitational travel orders may be issued.

(6) Embarkation of female correspondents in naval vessels. (i) Privileges equal to those given male correspondents will be accorded female correspondents whenever practicable.

(ii) Female correspondents may not be embarked overnight in a naval ship without prior approval of the appropriate Fleet Commander-in-Chief. This authority may be delegated to the numbered Fleet Commanders.

(7) Travel in ships of the Military Sealift Command. Correspondents may be carried in ships of the Military Sealift Command on either a space-required or space-available basis when travel is in the best interests of the Navy or the Department of Defense.

(i) Space-available travel will be used when practicable. A nominal charge is made by the Military Sealift Command and must be borne by the correspondents.

(ii) Space-required travel may be authorized when sufficiently in the interest of the Navy, and the charge may be borne by the Navy.

(iii) In either case, determination of Navy interests will be made by the Chief of Information, guided by the transportation policy of the Chief of Naval Operations, whose approval of such embarkation is required.

(iv) Requests for such travel will be submitted to the Chief of Information, who will coordinate with the Chief of Naval Operations and/or the Assistant Secretary of Defense (Public Affairs), as appropriate.

(8) Point to point transportation within the continental United States in naval aircraft other than those operated by the Military Airlift Command.

(i) SECNAVINST 4630.2A contains guidance for travel in military aircraft other than those operated by the Military Airlift Command.

(ii) Naval activities desiring to arrange such transportation will address requests via the chain of command to the operational command of the lowest echelon which has been delegated authority to approve such requests.

(iii) Upon approval of such a request, the naval activity sponsoring the correspondent shall:

(A) Prepare travel orders.

(B) Ensure that any waiver forms, as may be required by governing directives, are executed.

(9) Embarkation of news media representatives of foreign citizenship:

(i) Requests from foreign news media representatives to cruise with units of the U.S. Navy are usually made to the nearest U.S. military installation known to the correspondent, and are often not made in the proper chain of command to the Fleet Commander unless authorized to effect arrangements for an underway cruise.

(A) if the request is received by a command which is not a subordinate of the Fleet Commander concerned, it will be forwarded to the U.S. Naval Attache assigned to the foreign newsman's country. The Attache will then forward the request to the appropriate Fleet Commander, with his recommendations and the result of a brief background check on the newsman and his employer.

(B) If the request is received by a subordinate of the appropriate Fleet Commander, it may be forwarded directly to the latter, but the U.S. Naval Attache in the newsman's country will be given the opportunity to comment on the proposed embarkation.

(ii) Naval commands should not introduce an embarked third-party (i.e., a foreign media representative) into a foreign country other than his own without first obtaining appropriate clearance from the country to be visited. Approval for entry should be forwarded via appropriate command channels to the cognizant U.S. Naval Attache.

(10) Security considerations. (i) No media representative known to be affiliated with a group advocating the overthrow of the U.S. government will be permitted aboard naval ships or stations.

(ii) If security review is directed, the reason will be made clear to the correspondent prior to embarkation. News media people refusing to agree to observe security regulations may have their privileges suspended. Failure to observe security regulations will be reported to CHINFO and interested commands.

(d) Transportation of other civilians. (1) Although groups normally provide their own transportation to Navy commands, Navy transportation may be authorized when:

(i) Commercial transport is not available.

(ii) A professional group visit has been solicited by the Navy, such as participants in the Naval Academy Information Program (“Blue and Gold”) or educators invited to an Aerospace Education Workshop.

(2) Requests for nonlocal transportation under the above circumstances will be made to the Chief of Naval Operations.

(3) Carrier-on-board-delivery (COD) flights and helicopters flights to ships are considered local transportation.

(4) When units or areas of a Unified Command are involved in the public affairs program in connection with which travel authorization is requested by a Navy command which is not a component of the Unified Command concerned, coordination will be effected by the host command, through command channels, via the Chief of Information, to the Assistant Secretary of Defense (Public Affairs), who—as appropriate—will consult with the Unified Commander concerned.

(e) Special programs. (1) Cruises are discussed in Chapter 6, section 0604, para. 1 of the Navy Public Affairs Regulations.

(2) Embarkation of news media representatives, especially on operations and exercises, is discussed in Chapter 4, section 0405, paragraph 4 of the Navy Public Affairs Regulations.

(3) Other programs subject to special requirements or which have had exceptions authorized for them include:

(iii) Orientation flights in government aircraft, conducted in accordance with OPNAVINST 37107H.

(iv) Space-available air transportation may be provided Navy League members if they are invited to accompany a flag officer attending a Navy League convention or regional meeting and if the trip is economically justifiable, based on military travel considerations and not community relations or public affairs reasons. Approval in each instance will be obtained in advance from the Chief of Naval Operations.

(v) Air transportation for the Naval Sea Cadet Corps of the Navy League.

(A) Flights must be in Navy multiengine, transport type craft.

(B) Point-to-point flights on a space-required basis are governed by an annual quota set by the Chief of Naval Operations. Space-available transportation is authorized and will not be charged against this quota if it will not result in delays of takeoffs or a change in the itinerary planned for the primary mission.

(C) Flights must not interfere with operational commitments or training or results in additional expense to the government.

(D) This transportation is not available to other youth programs, including others sponsored by the Navy League.

(f) Other instructions on transportation of non-Navy civilians. Details on policy, procedures, and the transportation of certain categories of people will be found in OPNAVINST 5720.2G and DOD Directive 4515.13.

(a) General. (1) A number of public service awards are presented by the Department of Defense and the Navy to business and civic leaders, scientists and other nongovernment civilians. Other awards—military and civilian—are presented to members of the naval establishment.

(2) These awards are of public affairs interest in the locale where they are presented and also in the home towns of those who receive them.

(b) Department of Defense awards. (1) The Department of Defense Medal for Distinguished Public Service is presented to individuals. The Department of Defense Meritorious Award honors organizations.

(2) Details, including nominating procedures, are given in SECNAVINST 5061.12.

(c) Secretary of the Navy awards. (1) The following awards are presented by the Secretary of the Navy: The Navy Distinguished Public Service Award and Navy Meritorious Public Service Citation to individuals; the Navy Certificate of Commendation to members of special committees and groups; and the Navy Certificate of Merit to organizations and associations.

(2) Details are given in SECNAVINST 5061.12.

(3) Nominations for awards to military personnel are considered by the Board of Decorations and Medals, in accordance with SECNAVINST 1650.24A.

(4) Nominations for honorary awards to Department of the Navy civilian employees are considered by the Distinguished Civilian Service Awards Panel. (See Civilian Manpower Management Instruction 451.)

(d) Chief of Information awards—(1) Certificate of Public Relations Achievement. (i) This certificate is signed by the Chief of Information. It honors individuals who are not Navy employees, corporations, or associations.

(ii) It was established to fill the need for a civilian award for public relations achievements which, while not meeting the criteria for public service awards presented by the Secretary of the Navy, are of such Navy-wide significance as to merit recognition at the Department level. Examples of these achievements might be a particularly well done feature article about the Navy in a nationally read newspaper or an outstanding contribution to a locally sponsored event, which ultimately gave national or regional recognition to the Navy.

(iii) The achievement for which the certificate is given shall meet the following criteria:

(A) Contribute to accomplishment of the public information objectives of the Navy.

(B) Be the result of a single outstanding project or program.

(C) Have been accomplished within one year of the date of the official letter of nomination.

(iv) Nominations will be submitted through appropriate administrative channels to the Chief of Information, and will include a description of the service rendered, a statement of its relevance to the accomplishment of the public affairs objectives of the Navy and a draft of the recommended citation. To avoid possible embarrassment, nominations shall be marked “For Official Use Only” and safeguarded until final action has been taken.

(2) CHINFO Merit Awards. (i) These awards, or certificates, are presented quarterly to Navy publications and broadcasts considered to be outstanding or to have shown improvement in meeting professional standards of journalism.

(ii) Publications and broadcasts eligible are those which inform the reader concerning aspects of service life or related matters which contribute to the well-being of naval personnel, their dependents, and civilian employees of the Navy. Civilian enterprise periodicals are included if produced for the exclusive use of a naval installation.

(iii) Nominations are made in two ways:

(A) Selection during regular review periodicals and broadast air-checks received by the Internal Relations Activity.

(B) Nominations from the field. Such nominations are informal and may be made by the officer-in-charge, publications editor, broadcast station manager, or public affairs officer to the chief of Information, Navy Department, Washington, DC 20350 (ATTN: OP-0071).

(3) Other awards pertaining to public affairs/internal relations. (i) Silver Anvil award is given by the Public Relations Society of America for outstanding public relations programs carried out during the preceding year. Entry blanks and details may be obtained by writing directly to Public Relations Society of America, 845 Third Ave., New York, NY 10022. All Navy entries will be forwarded via the Chief of Information.

(ii) Freedom Foundation Awards of cash and medals are annually given to service personnel for letters on patriotic themes. Details are carried in ship and station publications, or may be obtained by writing to Freedom Foundations, Valley Forge, PA 19481.

(iii) Thomas Jefferson Awards are the prizes in an annual interservice competition sponsored by civilian media through the Department of Defense's Office of Information for the Armed Forces. The contest is open to all Armed Forces media—broadcast and print. Details can be obtained by writing to Office of Information, Department of the Navy, Washington, DC 20350.

(iv) Navy League Awards. Several annual awards are presented to naval personnel and civilians who have made a notable contribution to the importance of seapower. The awards are for inspirational leadership, scientific and technical progess, operational competence, literary achievement, etc. Nominations should be forwarded directly to Board of Awards, Navy League of the United States, 818 18th St., NW., Washington, DC 20006.

(v) Nonofficial awards to outstanding Navy students or training units.

(A) Various civilian organizations and private individuals have established awards to be presented to outstanding training units or naval students.

(B) Requests to establish an award for students in the Naval Air Training program should be forwarded to the Chief of Naval Air Training.

(C) Requests to establish an award which will involve more than one school (other than the Naval Air Training Program) will be forwarded to the Chief of Naval Personnel.

(D) All other cases may be decided by the Navy authority at the school concerned.

(E) Directives in the 5061, 1650 and 3590 series issued by pertinent authorities may provide further guidance in individual cases.

(vi) Awards established by a command to honor non-Navy civilians.

(A) Examples of such awards are “Good Neighbor” or “Honorary Crew Member” certificates.

(B) Established to honor persons who have been helpful to the command, they are a valuable community relations program. They should not be awarded to persons or organizations with which the command is associated in a commercial or governmental business capacity.

[41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979]SUBCHAPTER B—NAVIGATIONPt. 706PART 706—CERTIFICATIONS AND EXEMPTIONS UNDER THE INTERNATIONAL REGULATIONS FOR PREVENTING COLLISIONS AT SEA, 1972Sec.706.1Purpose of regulations.706.2Certifications of the Secretary of the Navy under Executive Order 11964 and 33 U.S.C. 1605.706.3Exemptions by the Secretary of the Navy under Executive Order 11964.Authority:

33 U.S.C. 1605.

§ 706.1Purpose of regulations.

(a) All ships are warned that, when U.S. naval vessels are met in international waters, certain navigational lights and sound-signalling appliances of some naval vessels may vary from the requirements of the International Regulations for Preventing Collisions at Sea, 1972 (33 U.S.C. foll. section 1602 (1982)), as to number, position, range, or arc of visibility of lights, as well as to the disposition and characteristics of sound-signalling appliances. Those differences are necessitated by reason of the special construction or purpose of the naval ships. An example is the aircraft carrier where the two masthead lights are considerably displaced from the center or keel line of the vessel when viewed from ahead. Certain other naval vessels cannot comply with the horizontal separation requirements for masthead lights, and the two masthead lights on even large naval vessels will thus appear to be crowded together when viewed from a distance. Naval vessels may also have unorthodox navigational light arrangements or characteristics when seen either underway or at anchor.

(b) Naval vessels may also be expected to display certain other lights. These lights include, but are not limited to, different colored rotating beacons, different colored fixed and rotary wing aircraft landing signal lights, red aircraft warning lights, and red or blue contour approach lights on replenishment-type ships. These lights may be shown in combination with the navigational lights.

(c) During peacetime naval maneuvers, naval ships, alone or in company, may also dispense with showing any lights, though efforts will be made to display lights on the approach of shipping.

(d) Executive Order 11964 of January 19, 1977, and 33 U.S.C. 1605 provide that the requirements of the International Regulations for Preventing Collisions at Sea, 1972, as to the number, position, range, or arc of visibility of lights or shapes, as well as to the disposition and characteristics of sound-signalling appliances, shall not apply to a vessel of the Navy where the Secretary of the Navy shall find and certify that, by reason of special construction or purpose, it is not possible for such vessel to comply fully with the provisions without interfering with the special function of the vessel.

(e) Executive Order 11964 also provides that the Secretary of the Navy is authorized to exempt, in accordance with Rule 38 of the International Regulations for preventing Collisions at Sea, 1972, any vessel, or class of vessels, the keel of which is laid, or which is at a corresponding stage of construction, before July 15, 1977, from full compliance with the International Regulations, provided that such vessel, or class of vessels, complies with the requirements of the International Regulations for Preventing Collisions at Sea, 1960.

(f) This part consolidates and codifies certifications and exemptions granted by the Secretary of the Navy under Executive Order 11964 and 33 U.S.C. 1605. It has been determined that, because of their special construction or purpose, the vessels and classes of vessels listed in this part cannot comply fully with all of the requirements of the International Regulations for Preventing Collisions at Sea, 1972.

The Secretary of the Navy hereby finds and certifies that each vessel listed in this section is a naval vessel of special construction or purpose, and that, with respect to the position of the navigational lights listed in this section, it is not possible to comply fully with the requirements of the provisions enumerated in the International Regulations for Preventing Collisions at Sea, 1972, without interfering with the special function of the vessel. The Secretary of the Navy further finds and certifies that the navigational lights in this section are in the closest possible compliance with the applicable provisions of the International Regulations for Preventing Collisions at Sea, 1972.

1. Ships other than aircraft carrier types (CV, CVN, LHA, LHD, and LPH) may not simultaneously exhibit the masthead lights required by Rule 27(b)(iii) and the lights required by Rule 27(b)(i) for vessels restricted in their ability to maneuver when such simultaneous exhibition will present a hazard to their own safe operations. In those instances, the lights required by Rule 27(b)(i) will be exhibited. Ships conducting flight operations also may not exhibit the stern light required by Rule 27(b)(iii).

2. To provide all-round visibility, the lights required by Rules 27 (a) and (b) will consist of two lights, one light port and one light starboard on the mast or superstructure at each location in the vertical array.

3. The second masthead light required by Rule 23(a)(ii) and the lights and shapes required by Rules 24, 27, and 30(d)(i) are not displayed by submarines.

4. On mine warfare type ships the masthead lights will not always be above and clear of the minesweeping lights, as is required by Annex I, Section 2(f). The positions of the masthead lights with relation to the minesweeping lights are as follows:

VesselMSO No.Relationship of forward masthead light to all minesweeping lightsRelationship of after masthead light to lower minesweeping lightsRelationship of after masthead light to upper minesweeping lightsMSB15belowMSB16doMSB25doMSB28doMSB29doMSB41doMSB51doMSB52do

5. The masthead light required by Rule 23(a)(i) is not located in the forepart of the vessel on the CSP Class and SLWT Class.

6. [Reserved]

7. On the following ships the arc of visibility of the forward masthead light required by Rule 23(a)(i) may be obstructed through 1.6° arc of visibility at the points 021° and 339° relative to the ship's head.

9. On LCAC-class amphibious vessels, full compliance with Rules 21(a), 21(b), and 22(b), and Annex I, section 2(a)(i), 72 COLREGS, cannot be obtained. Tables One and Two of section 706.2 provide the dimensions of closest possible compliance of LCAC-class amphibious vessels with the aforementioned rules. The following paragraph details the specific dimensions of closest possible compliance and the basis for certification by the Secretary of the Navy that full compliance with the aforementioned rules is not obtainable.

In LCAC-class amphibious vessels, there are permanent and temporary masts. The permanent masthead light is located 5.26 meters athwartship to port of centerline 5.49 meters above the hull. The temporary masthead light is located 3.98 meters athwartship to starboard of centerline 4.06 meters above the hull. The temporary masthead light is displayed in lieu of the permanent masthead light only when LCAC-class amphibious vessels are operating with amphibious assault vessels. When operating in this mode, the sidelights are displayed at a height greater than three-quarters of the height of the temporary masthead light. The sidelights are located on top of the port and starboard deckhouses to permit the required unobstructed arcs of visibility and are 3.28 meters above the hull, resulting in a vertical separation between those lights and the temporary masthead light of 0.78 meters. Because of the minimal vertical separation between the sidelights and the temporary masthead light and the luminous intensity of the temporary light, the sidelights on these vessels may not be distinguishable by the naked eye at the 2-mile range required by Rule 22(b).

10. [Reserved]

11. On USS DOLPHIN (AGSS 555) the masthead light will be visible at a distance of 4.3 nautical miles and the sidelights will be visible at a distance of 2 nautical miles.

12.-13. [Reserved]

14. The following harbor tugs are equipped with a hinged mast. When the mast is in the lowered position as during a towing alongside or pushing operation, the two masthead lights required by Rule 24(c), and the all around lights required by Rule 27(b)(i) will not be shown; however, an auxiliary masthead light not meeting with Annex I, section 2(a)(i) height requirement will be exhibited.

17. The second masthead light required by Rule 23(a)(ii) will not be displayed on the PC 1 Class.

18. On the following mine warfare type ships, the arc of visibility of the lower all-round minesweep lights required by Rule 27(f), may be obstructed through the following angles relative to the ship's heading:

VesselNumberObscured angles relative to ship's headingPortSTBDOSPREYMHC 5159.5° to 78.3°281.7° to 300.5°HERONMHC 5259.5° to 78.3°281.7° to 300.5°PELICANMHC 5359.5° to 78.3°281.7° to 300.5°ROBINMHC 5459.5° to 78.3°281.7° to 300.5°ORIOLEMHC 5565.0° to 75.6°284.1° to 294.6°CORMORANTMHC 5759.5° to 78.3°281.7° to 300.5°BLACK HAWKMHC 5865.0° to 75.6°284.1° to 294.6°USS FALCONMHC 5965.0° to 75.6°284.1° to 294.6°CARDINALMHC 6065.0° to 75.6°284.1° to 294.6°

19. Sidelights on the following ships do not comply with Annex I, Section 2 (g):

For Federal Register citations affecting § 706.2, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and on GPO Access.

Editorial Note 2:

At 66 FR 53532, Oct. 23, 2001, Tables Four and Five were amended by adding entries for the USS WINSTON CHURCHILL. Those tables have entries for the ship.

§ 706.3Exemptions by the Secretary of the Navy under Executive Order 11964.

The Secretary of the Navy hereby exempts, in accordance with Rule 38 of the International Regulations for Preventing Collisions at Sea, 1972, the vessels and classes of vessels listed in this section, from full compliance with the Regulations, where an exemption is allowed by, and for the periods specified in, Rule 38. The Secretary of the Navy further finds that the vessels and classes of vessels listed have had their keels laid or are in corresponding stages of construction before July 15, 1977, and that such vessels and classes of vessels comply with the requirements of the International Regulations for Preventing Collisions at Sea, 1960.

All ships are warned that when U.S. naval vessels are met in international and inland waters, some of the navigational lights displayed by them may be special lights for naval purposes. When used, they may be displayed simultaneously with the ordinary navigational lights required by the International Regulations for Preventing Collisions at Sea, 1972, or the Inland Navigational Rules. The lights are located and characterized in such a fashion that, as far as possible, they cannot be mistaken for any light authorized by either set of rules. This part publishes the special rules with respect to these additional station and signal lights promulgated by the Secretary of the Navy for vessels of the Navy.

§ 707.2Man overboard lights.

Naval vessels may display, as a means of indicating man overboard, two pulsating, all round red lights in the vertical line located on a mast from where they can best be seen.

§ 707.3Yard arm signaling lights.

Naval vessels may display, as a means of visual signaling, white all round lights at the ends of the yard arms. These lights will flash in varying sequences to convey the intended signal.

§ 707.4Aircraft warning lights.

Naval vessels may display, as a means of indicating the presence of an obstruction to low flying aircraft, one all round red light on each obstruction.

§ 707.5Underway replenishment contour lights.

Naval vessels may display, as a means of outlining the contour of the delivery ship during nighttime underway replenishment operations, either red or blue lights at delivery-ship-deck-edge extremities.

Naval vessels engaged in minesweeping operations may display, as an aid in maintaining prescribed intervals and bearings, two white lights in a vertical line visible from 070° through 290° relative.

§ 707.7Submarine identification light.

Submarines may display, as a distinctive means of identification, an intermittent flashing amber beacon with a sequence of operation of one flash per second for three (3) seconds followed by a three (3) second off-period. The light will be located where it can best be seen, as near as practicable, all around the horizon. It shall not be located less than two (2) feet above or below the masthead lights.

[48 FR 4284, Jan. 31, 1983]§ 707.8Special operations lights.

Naval vessels may dispay, as a means of coordinating certain special operations, a revolving beam colored red, green, or amber, located on either yard arm or the mast platform from where it can best be seen all around the horizon.

§ 707.9Convoy operations stern light.

Naval vessels may display, during periods of convoy operations, a blue light located near the stern with the same characteristics as, but in lieu of, the normal white stern light.

§ 707.10Wake illumination light.

Naval vessels may display a white spot light located near the stern to illuminate the wake.

§ 707.11Flight operations lights.

Naval vessels engaged in night flight operations may display various arrangements of light systems containing combinations of different colored lights as a means of assisting in the launch and recovery of aircraft and enhancing flight safety. These light systems will be located at various points on the vessels, depending on the vessel type and the nature of the flight operations being conducted.

§ 707.12Amphibious operations lights.

Naval vessels engaged in night amphibious operations may display various arrangements of light systems containing combinations of different colored lights as a means of assisting in the launch and recovery of assault craft and enhancing the safety of the amphibious operation. These light systems will be located at various points on the vessel, depending on the vessel type and the nature of the amphibious operations being conducted.

SUBCHAPTER C—PERSONNELPt. 716PART 716—DEATH GRATUITYSubpart A—Provisions Applicable to the Navy and the Marine CorpsSec.716.1Principal rule.716.2Definitions.716.3Special situations.716.4Eligible survivors.716.5Delegation of authority.716.6Death occurring after active service.716.7Payment of the death gratuity.716.8Payments excluded.716.9Erroneous payment.Subpart B—Provisions Applicable to the Navy716.10Procedures.Subpart C—Provisions Applicable to the Marine Corps716.11Procedures.Authority:

Subpart A—Provisions Applicable to the Navy and the Marine Corps§ 716.1Principal rule.

Under title 10 U.S.C., section 1475, the Secretary of the Navy shall have a death gratuity paid immediately upon official notification of the death of a member of the naval service who dies while on active duty, active duty for training, or inactive duty training. The death gratuity shall equal six months’ basic pay (plus special, incentive, and proficiency pay) at the rate to which the deceased member was entitled on the date of his death but shall not be less than $800 nor more than $3,000. A kind of special pay included is the 25% increase in pay to which a member serving on a naval vessel in foreign waters is entitled under 10 U.S.C. 5540 when retained beyond expiration of enlistment because such retention was essential to the public interest.

§ 716.2Definitions.

For the purposes of this part, terms are defined as follows:

(a) Member of the naval service. This term includes:

(1) A person appointed, enlisted, or inducted into the Regular Navy, Regular Marine Corps, Naval Reserve or Marine Corps Reserve, and includes a midshipman at the United States Naval Academy;

(2) Enlisted members of the Fleet Reserve and Fleet Marine Corps Reserve and retired members;

(3) A member of the Naval Reserve Officers Training Corps when ordered to annual training duty for 14 days or more, and while performing authorized travel to and from that duty; and

(4) Any person while en route to or from, or at a place for final acceptance for entry upon active duty in the naval service who has been ordered or directed to go to that place, and who has been provisionally accepted for such duty.

(b) Active duty. This term is defined as (1) full-time duty performed by a member of the naval service, other than active duty for training, or (2) as a midshipman at the United States Naval Academy, and (3) authorized travel to or from such duty or service.

(c) Active duty for training. Such term means:

(1) Full-time duty performed by a member of a Reserve component of the naval service for training purposes;

(2) Annual training duty performed for a period of 14 days or more by a member of the Naval Reserve Officers Training Corps; and

(3) Authorized travel to or from such duty.

(d) Inactive-duty training. Such term is defined as any of the training, instruction, appropriate duties, or equivalent training, instruction, duty, appropriate duties, or hazardous duty performed with or without compensation by a member of a Reserve component prescribed by the Secretary of the Navy pursuant to sections 206, 309, and 1002 of title 37 U.S.C. or any other provision of law. The term does not include:

(1) Work or study performed by a member of a Reserve component in connection with correspondence courses in which he is enrolled, or

(2) Attendance at an educational institution in an inactive status under the sponsorship of the Navy or Marine Corps.

(a) Service without pay. Any member of a Reserve component who performs active duty, active duty for training, or inactive-duty training without pay shall, for purposes of a death gratuity payment, be considered as being entitled to basic pay, including special pay and incentive pay if appropriate, while performing such duties.

(b) Death occurring while traveling to and from active duty for training and inactive-duty training. Any member of a Reserve component who, when authorized or required by competent authority, assumes an obligation to perform active duty for training or inactive-duty training and who dies from an injury incurred on or after January 1, 1957 while proceeding directly to or directly from such active duty for training or inactive-duty training, shall be deemed to have been on active duty for training or inactive-duty training as the case may be.

(c) Hospitalization. A member of a Reserve component who suffers disability while on active duty, active duty for training, or inactive-duty training, and who is placed in a new status while he is receiving hospitalization or medical care (including out-patient care) for such disability, shall be deemed, for purposes of death gratuity payment to have continued on active duty, active duty for training, or inactive-duty training, as the case may be, in the event of his death in such status.

(d) Discharge or release from a period of active duty. A person who is discharged or released from active duty (other than for training) is considered to continue on that duty during the period of time required for that person to go to his home by the most direct route. That period may not end before midnight of the day on which the member is discharged or released.

(a) The death gratuity shall be paid to or for the living survivor or survivors of the deceased member first listed below:

(1) The lawful spouse. (For purpose of this part, a man or woman shall be considered to be the spouse if legally married to the member at the time of the member's death.)

(2) His children (without regard to their age or marital status) in equal shares.

(3) Parent(s), brother(s) or sister(s) or any combination of them, when designated by the deceased member.

(4) Undesignated parents in equal shares.

(5) Undesignated brothers and sisters in equal shares. In paragraphs (a)(2), (3) and (4), respectively, of this section, the terms “child” and “parent” have the meanings assigned to them by title 10 U.S.C. section 1477 and the term “parents” includes persons in loco parentis as indicated by that section. The terms “brother” and “sister” in paragraphs (a) (3) and (5) of this section include brothers and sisters of the half blood and those through adoption.

(b) Designation of payee by service member. Where the service member has designated a beneficiary and is not survived by a spouse, child, or children, the payment will be made to the specific person designated by him provided the designee falls within the class of beneficiaries permitted as set forth in paragraph (a)(3) of this section. If more than one person is so designated on the Record of Emergency, payment will be made in equal shares unless the member designated a proportionate share to each beneficiary. Frivolous designations, such as one per centum to a particular beneficiary, should not be made.

(c) Death of survivor prior to receipt of gratuity. (1) If a survivor dies before receiving payment, or if a designated beneficiary predeceases the member (and there is no other designated beneficiary) such amount shall be paid to the then living survivor or survivors listed first under paragraph (a) of this section.

(2) In case one of the beneficiaries (parents or brothers or sisters) designated by a member, pursuant to paragraph (a)(3) of this section, to receive death gratuity payment dies prior to the member's death, or after his death but prior to the time payment is made, the share which would have been paid to the deceased designee may be paid to the other person or persons designated.

(a) Pursuant to the authority contained in title 10 U.S.C., section 1479, as to deaths described in section 1475 thereof, the Secretary of the Navy has delegated to commanding officers of naval commands, installations, or districts, with respect to naval personnel, and to Marine Corps commanding generals and officers in command of regiments, battalions or equivalent units and of separate or detached commands who have custody of service records, with respect to Marine Corps personnel, authority to certify for the payment of death gratuity the lawful spouse or designated beneficiary(ies) of the deceased service member who was residing with him at or near his place of duty at the time of his death, except in cases in which a doubt may exist as to the identity of the legal beneficiary. Disbursing officers are authorized to make payment of the death gratuity upon receipt of certification from the Commanding Officer.

(b) The Secretary of the Navy has delegated authority to the Chief of Naval Personnel as to naval personnel, and to the Commandant of the Marine Corps (Code MSPA-1) as to Marine Corps personnel, the authority to certify the beneficiary(ies) for receipt of payment of death gratuity in all appropriate cases of payment of death gratuity under the Servicemen's and Veterans' Survivor Benefits Act (now reenacted in 10 U.S.C. 1475-1480), including, but not limited to:

(1) Cases in which a doubt may exist as to the identity of the legal beneficiary; and

(2) Cases in which the widow or designated beneficiary(ies) of the deceased service member was not residing with him at or near his place of duty at the time of his death.

(a) Under title 10 U.S.C., section 1476, the death gratuity will be paid in any case where a member or former member dies on or after January 1, 1957, during the 120-day period which begins on the day following the date of his discharge or release from active duty, active duty for training, on inactive duty training, if the Administrator of Veterans' Affairs determines that:

(1) The decedent was discharged or released, as the case may be, from the service under conditions other than dishonorable from the last period of the duty or training performed; and

(2) Death resulted from disease or injury incurred or aggravated while on such active duty or active duty for training; or while performing authorized travel to or from such duty; or

(3) Death resulted from injury incurred or aggravated while on such inactive-duty training or while traveling directly to or from such duty or training.

(b) For purposes of computing the amount of the death gratuity in such instances, the deceased person shall be deemed to be entitled on the date of his death to basic pay (plus any special, incentive and proficiency pay) at the rate to which he was entitled on the last day he performed such active duty, active duty for training, or inactive duty training. A kind of special pay included is a pay increase under 10 U.S.C. 5540; see § 716.1.

(c) The Department of the Navy is precluded from making payment of the death gratuity pending receipt of the determinations described in paragraph (a) of this section. In view of this, commands should insure that the medical records and reports of investigations by fact-finding bodies be submitted to the Navy Department at the earliest possible date. The Veterans' Administration is promptly notified of all deaths of this category reported, and upon the request of that agency all pertinent data is forwarded.

§ 716.7Payment of the death gratuity.

(a) Claim certification and voucher for the death gratuity payment. The Comptroller General of the United States has approved DD Form 397 as the form to be used hereafter for claim certification and voucher for the death gratuity payment.

(b) Active duty deaths (Navy). To effect immediate payment of death gratuity the following actions will be taken:

(1) The commanding officer will ascertain that the deceased member died while on active duty, active duty for training, or inactive-duty training, and will obtain the name, relationship, and address of the eligible survivor from the Service Record of the deceased. The Dependency Application/Record of Emergency Data (NAVPERS 1070/602) or Record of Emergency Data (DD Form 93), will normally contain this information. In addition, in the case of enlisted personnel, the Application for Dependents Allowance (BAQ [Basic Allowance for Quarters]), NAVPERS Form 668, may serve as a source of corroboration. He will, with the cooperation of the disbursing officer, initiate preparation of a Claim Certification and Voucher for Death Gratuity Payment, DD Form 397, in original and five copies, completing blocks 5 through 14 inclusive, and the administrative statement in block 18. The administrative statement in block 18 will be signed by the commanding officer or acting commanding officer.

(2) The disbursing officer will, upon receipt of the DD Form 397, draw a check to the order of the eligible survivor named in block 5, complete blocks 2, 3, 4, and the check payment data portion of block 18.

(3) Under arrangements made by the commanding officer, the check and the original and one copy of the voucher, DD Form 397, will be delivered to the payee. The payee will be required to complete block 15, sign in block 17a, and have two witnesses complete block 17 on the original voucher at the time the check is delivered. Under no circumstances will the check be delivered to the payee until this action has been accomplished. The payee will retain the copy of the voucher, DD Form 397, and the signed original voucher will be returned by hand to the disbursing officer by the person designated to deliver the check.

(a) No payment shall be made if the deceased member suffered death as a result of lawful punishment for a crime or for a military or naval offense, except when death was so inflicted by any hostile force with which the Armed Forces of the United States have engaged in armed conflict.

(b) No payment will be made to a survivor implicated in the homicide of the deceased in the absence of evidence clearly absolving such survivor of any felonious intent.

(c) Unless the laws of the place where a minor beneficiary resides provide that such a payment would grant a valid acquittance of the Government's obligation to make a payment of death gratuity to or for a minor, a death gratuity of more than $1,000 may not be paid in whole or in part to a parent as natural guardian of a minor or to any other person who is not a legal guardian appointed by the civil court to manage the minor's financial affairs.

Where through administrative mistake of fact or law, payment of the death gratuity is made to a person clearly not entitled thereto, and it is equally clear that another person is entitled to the death gratuity, the Chief of Naval Personnel (Pers-732) or the Commandant of the Marine Corps (Code MSPA-1), as appropriate, will certify payment to the proper payee, irrespective of recovery of the erroneous payment. On the other hand, where a payment of the death gratuity has been made to an individual on the basis of representations of record made by the deceased member as to his marital and dependency status, and the Government otherwise has no information which would give rise to doubt that such status is as represented, the payment is not to be regarded as “erroneous.” The Government has a good acquittance in such cases even though it may subsequently develop that the payee is not the proper statutory payee of the gratuity and no second payment is authorized.

(a) Action by commanding officers. See § 716.7(b)—(1) Immediate payment—Eligible beneficiary residing with deceased member. Commanding officers, in order to expedite the payment of the death gratuity, will, upon official notification of death, ascertain the duty status of the deceased, and determine the eligibility of the spouse or designated beneficiary who was residing with the deceased member on or near his duty station at the time of his death. The services of a staff or district legal officer will be utilized as required. Every effort should be made to effect prompt payment (within 24 hours, if possible). It is the intent that determinations of entitlement by commands in the field will be confined largely to spouses and parents designated by the service member who were living with him at the time of his death.

(2) Questionable cases. If entitlement to the death gratuity payment is questionable after seeking advice of the staff or district legal officer, such case will be forwarded promptly to the Chief of Naval Personnel (Pers-732) with a brief statement relative to the facts which raised the issue of doubt. Every effort will be made to expedite action by a review of the official records of the decedent in the Bureau of Naval Personnel and the Family Allowance Activity at Cleveland, Ohio. Those cases wherein the service member was in a deserter status, absent without leave, or in the custody of civil authorities at the time of death, wherein guardianship must be provided for the protection of the decedent's children, or wherein a technicality exists which makes immediate certification legally unsound, will be considered questionable.

(3) Exception. Where the entitlement of the survivor who is living with the deceased at the time of his death is questionable and such survivor is in dire financial circumstances, the Chief of Naval Personnel (Pers-G23) shall be requested by message to make an adjudication of entitlement. If it is determined that the survivor is entitled to the payment, the commanding officer will be authorized by message to execute DD Form 397.

(b) Action by Casualty Assistance Calls Program (CACP) officers; Potential beneficiary not residing with member—(1) Widow(er). The CACP officer, on his or her initial visit to a widow(er), determines, propriety permitting, whether there is an urgent need for financial assistance. If there is an urgent need for financial assistance, the CACP officer should obtain DD Form 397 from any military disbursing office and, on his or her second visit to the widow(er), have him or her sign it and obtain the signatures of two witnesses on the form. It should be noted that the following procedure is confined to cases in which the decedent's eligible survivor for the death gratuity is a widow(er), and efforts to effect immediate payment in accordance with the intent of the governing statute are appropriate. In such cases, the CACP officer, upon learning that a widow(er), not residing with his or her spouse at or near the spouse's duty station, is in urgent need of financial assistance, shall advise the Chief of Naval Personnel (Pers-732) of the need by message. The CACP officer shall send a copy of this message to the decedent's duty station, if known. Upon receipt, the disbursing officer will furnish the Navy Finance Center, Cleveland, Ohio 44199, with the decedent's basic monthly pay [plus any special (see § 716.1), incentive, and proficiency pay] in the event the pay account has not been forwarded previously to that center sufficiently early to have reached there. The CACP officer shall also send a copy of his message to the Navy Finance Center with the request that payment of the death gratuity be made upon receipt of the certification of beneficiary entitlement from the Chief of Naval Personnel (Pers-732).

(2) Navy Relief. In cases where there is immediate need prior to receipt of the death gratuity, the Navy Relief Society will be contacted by the Casualty Assistance Calls Program officer.

(c) Action by the Chief of Naval Personnel. (1) In all cases where death gratuity is not authorized to be paid locally and in cases where authority exists to pay locally but entitlement is questionable (see paragraph (a)(2) of this section), the Chief of Naval Personnel (Pers-732) will expedite adjudication of claims. As indicated in paragraph (b)(1) of this section CACP officers will refer cases of urgent financial need to the Chief of Naval Personnel (Pers-732) by message for action.

(2) If a minor is entitled to a death gratuity under 10 U.S.C. 1477 not exceeding $1,000, such death gratuity may be paid to the father or mother as natural guardian on behalf of the minor, provided a legally appointed guardian has not been appointed, upon substantiation by a sworn (notarized) statement of the natural guardian:

(i) That no legal guardian has been appointed and that such an appointment is not contemplated;

(ii) The relationship of the natural guardian to the minor;

(iii) That the minor is in the actual custody of the natural guardian;

(iv) That an amount paid to the natural guardian will be held for, or applied to, the use and benefit of the minor.

If the death gratuity to which a minor is entitled exceeds $1,000, the appointment of a legal guardian on behalf of the minor is requested. Certification of the minor eligible to receive the death gratuity is made by the Chief of Naval Personnel (Pers-732) and payment is effected by the Navy Finance Center, Cleveland, OH 44199;

(d) Cross-servicing procedure. Payment of the death gratuity may be made by a disbursing officer who is maintaining the pay record of a member of another service, provided the command to which the member is attached and which maintains his service record is in the immediate vicinity and certificates the beneficiary eligible to receive payment on the proper voucher (DD Form 397). Otherwise the pay record will be sent to the Army Finance Center, Air Force Finance Center, Commandant of the Marine Corps (Code CDB), the Navy Finance Center, of the Commandant, U.S. Coast Guard, as appropriate.

(a) Action. Commanding officers will direct immediate payment of the gratuity where the deceased member's spouse was, in fact, residing with the member on or near the station of duty at the time of the member's death while on active duty, active duty for training, or inactive-duty training. Every effort should be made to effect such payment promptly (within 24 hours, if possible). In cases where the eligible survivor residing with the member on or near the duty station is other than a spouse, commanding officers may direct the payment of death gratuity when the case can be properly determined, and an urgent need exists for immediate payment. Proper determination is imperative.

(b) Qualifications. (1) Where any doubt exists as to the legal recipient of the gratuity, the case will be referred to the Commandant of the Marine Corps (Code MSPA-1) for determination.

(a) Under the provisions of the Missing Persons Act, as amended, a finding of presumptive death is made by the Secretary of the Navy when a survey of all available sources of information indicates beyond doubt that the presumption of continuance of life has been overcome. When a finding of presumptive death is made, a man's pay accounts are closed as of the day following the expiration of the 12 months’ absence or a longer period when justified, and the various benefits, such as the six months’ gratuity, become payable. A finding of presumptive death concerning an officer or enlisted man of the Navy means simply that as of the date thereof he is for the purposes of Naval administration no longer alive. It does not mean that death occurred on that or on any other certain date.

(b) Findings of presumptive death are never made when the “missing” status has not continued for at least 12 months. Whenever, subsequent to the expiration of the 12th month, cumulative or other evidence establishes by its preponderance that a “missing” person is no longer alive, a prompt finding of presumptive death will be made. Also, such a finding will be made whenever justified by the lapse of time beyond the 12 months’ absence without specific information being received.

(c) The Secretary of the Navy, or such subordinate as he may designate, has authority to make all determinations necessary in the administration of the act, and for the purposes of the act determinations so made shall be conclusive as to death or finding or death, as to any other status dealt with by the act, and as to any essential date including that upon which evidence or information is received in the Department. The determination of the Secretary of the Navy, or of such subordinate as he may designate, is conclusive as to whether information received concerning any person is to be construed and acted upon as an official report of death. When any information deemed to establish conclusively the death of any person is received in the department, action shall be taken thereon as an official report of death, notwithstanding any prior action relating to death or other status of such person. Under the foregoing provisions a determination of death is made prior to the expiration of 12 months when the evidence received is considered to establish conclusively the fact of death and settlement of accounts is made to the date established as the date of receipt of evidence on which the fact of death is established.

During such period as a person is in a status of missing, missing in action, interned in a foreign country, captured by a hostile force, beleaguered by a hostile force, or besieged by a hostile force, allotments from his pay and allowances may be initiated, continued, discontinued, increased, decreased, suspended or resumed in behalf of his dependents and for such other purposes as are justified by the circumstances and are in the interests of the person or of the Government.

(a) Whenever a person in active service is officially reported as dead, injured, (Only when the anticipated period of hospitalization or treatment is expected to be of prolonged duration as shown by a statement of the commanding officer at the receiving hospital), missing for a period of 29 days or more, interned in a foreign country, or captured by a hostile force, his dependents, household and personal effects including one privately owned motor vehicle may be moved (including packing, crating, drayage, temporary storage, and unpacking of household and personal effects) to the official residence of record for any such person or to the residence of his dependent, next of kin, or other person entitled to receive custody of the effects in accordance with the provisions of paragraph (d) of this section; or, upon application by such dependent, next of kin, heir or legal representative, or other person determined in accordance with paragraph (d) of this section, or upon the person's application if injured, to such location as may have been determined in advance or as may be subsequently approved, except that a reasonable relationship must exist between the condition and circumstances of the dependents and the destination to which transportation is requested. In the case of a person in an injured status, transportation of his dependents or household and personal effects may be authorized only when the hospitalization or treatment of the injured person will be of prolonged duration. Payment in money of amounts equal to such commercial transportation costs or a monetary allowance in lieu of transportation as authorized by law for the whole or such part of the travel for which transportation in kind is not furnished, may be authorized, when such travel has been completed.

(b) When the Secretary of the Navy or his designee determines that an emergency exists and that such sale would be in the best interests of the Government, he may provide for the disposition of the motor vehicles and other bulky items of such household and personal effects of the person by public or private sale. Prior to any such sale, and if practicable, a reasonable effort shall be made to determine the desires of the interested persons. The net proceeds received from such sale shall be transmitted to the owner, next of kin, heir or legal representative, or other person determined in accordance with paragraph (d) of this section; but if there be no such persons or if such persons or their addresses are not ascertainable within one year from the date of sale, the net proceeds may be covered into the Treasury as miscellaneous receipts.

(c) The Secretary of the Navy or his designee is authorized to store the household and personal effects of the person until such time as proper disposition can be made. The cost of such storage and transportation, including packing, crating, drayage, temporary storage, and unpacking of household and personal effects, will be charged against appropriations currently available.

(d) The following provisions apply to the determination of the “other person” or persons referred to in paragraphs (a) and (b) of this section who may receive the effects or proceeds.

(1) If no duly appointed legal representative of the owner of the personal effects makes demand upon the Department of the Navy for the effects, the determination by naval authorities as to the next of kin or heirs of the owner of the personal effects may be made on the basis of the following:

(i) Personnel records; or

(ii) Other documents applicable to the case; or

(iii) Title 10 U.S.C., section 2771, to the extent that it prescribes an order of precedence among next of kin or heirs, namely, the widow or widower of the owner; if no widow or widower, then the child or children of the owner and descendants of deceased children, by representation; if none of the above, the parents of the owner or the survivor of them; or if none of the above, other persons determined to be eligible under the laws of the domicile of the owner.

(2) Such determination should be regarded as administrative rather than legal, as the determination does not vest title to effects or proceeds in the next of kin, heirs, or legal representative to whom the effects are delivered. Therefore, delivery of the personal effects to other than the owner will be made subject to the following advisory note which should be written on a copy of the inventory or in a letter:

Delivery of the personal effects into the custody of other than the owner thereof, by the Department of the Navy, does not in any way vest title to the effects in the recipient. Delivery of the effects to the recipient is made so that distribution may be made in accordance with the laws of the state in which the owner of the effects was legally domiciled or to restore the effects to the owner in the event of his return from a missing status.

(3) When it is impracticable to divide the personal effects of a person into equal shares, and two or more persons within a class, as provided in 10 U.S.C. section 2771, are entitled to receive the effects but cannot agree among themselves as to which one of them shall receive the effects, then all of the effects will be retained by either the Personal Effects Distribution Center at Norfolk, VA, or the Personal Effects Distribution Center at Oakland, CA, for a period of two years from the date of death of the member. At the expiration of the two-year period such effects will be sold.

The Secretary of the Navy has delegated to the Director, Personal Services Division, Bureau of Naval Personnel with respect to personnel in the Navy, and to the Head, Personal Affairs Branch Manpower Department (Code MSPA), United States Marine Corps, with respect to personnel in the Marine Corps, authority to make all determinations to administer the act.

(Pub. L. 89-554, 80 stat. 379 (5 U.S.C. 301))[17 FR 5391, June 14, 1952, as amended at 19 FR 7959, Dec. 2, 1954; 44 FR 22456, Apr. 16, 1979]Pt. 719PART 719—REGULATIONS SUP-PLE-MENT-ING THE MANUAL FOR COURTS-MARTIALSubparts A-B [Reserved]Subpart C—Trial MattersSec.719.112Authority to grant immunity from prosecution.719.113-719.114[Reserved]719.115Release of information pertaining to accused persons; spectators at judicial sessions.Subpart D [Reserved]Subpart E—Miscellaneous Matters719.138Fees of civilian witnesses.719.139-719.141[Reserved]719.142Suspension of counsel.719.143Petition for new trial under 10 U.S.C. 873.719.144Application for relief under 10 U.S.C. 869, in cases which have been finally reviewed.719.145-719.150[Reserved]719.151Furnishing of advice and counsel to accused placed in pretrial confinement.719.155Application under 10 U.S.C. 874(b) for the substitution of an administrative form of discharge for a punitive discharge or dismissal.Authority:

(a) General. In certain cases involving more than one participant, the interests of justice may make it advisable to grant immunity, either transactional or testimonial, to one or more of the participants in the offense in consideration for their testifying for the Government or the defense in the investigation and/or the trial of the principal offender. Transactional immunity, as that term is used in this section, shall mean immunity from prosecution for any offense or offenses to which the compelled testimony relates. Testimonial immunity, as that term is used in this section, shall mean immunity from the use, in aid of future prosecution, of testimony or other information compelled under an order to testify (or any information directly or indirectly derived from such testimony or other information). The authority to grant either transactional or testimonial immunity to a witness is reserved to officers exercising general court-martial jurisdiction. This authority may be exercised in any case whether or not formal charges have been preferred and whether or not the matter has been referred for trial. The approval of the Attorney General of the United States on certain orders to testify may be required, as outlined below.

(b) Procedure. The written recommendation that a certain witness be granted either transactional or testimonial immunity in consideration for testimony deemed essential to the Government or to the defense shall be forwarded to an officer competent to convene a general court-martial for the witness for whom immunity is requested, i.e., any officer exercising general court-martial jurisdiction. Such recommendation will be forwarded by the trial counsel or defense counsel in cases referred for trial, the pretrial investigating officer conducting an investigation upon preferred charges, the counsel or recorder of any other fact-finding body, or the investigator when no charges have yet been preferred. The recommendation shall state in detail why the testimony of the witness is deemed so essential or material that the interests of justice cannot be served without the grant of immunity. The officer exercising general court-martial jurisdiction shall act upon such request after referring it to his staff judge advocate for consideration and advice. If approved, a copy of the written grant of immunity must be served upon the accused or his defense counsel within a reasonable time before the witness testifies. Additionally, if any witness is expected to testify in response to a promise of leniency, the terms of the promise of leniency must be reduced to writing and served upon the accused or his defense counsel in the same manner as a grant of immunity.

(c) Civilian witnesses. Pursuant to 18 U.S.C. 6002 and 6004, if the testimony or other information of a civilian witness at a court-martial may be necessary in the public interest, and if the civilian witness has refused or is likely to refuse to testify or provide other information on the basis of a privilege against self-incrimination, then the approval of the Attorney General of the United States, or his designee, must be obtained prior to the execution or issuance of an order to testify to such civilian witness. The cognizant officer exercising general court-martial jurisdiction may obtain the approval of the Attorney General in such a circumstance by directing a message or letter requesting the assistance of the Judge Advocate General (Code 20) in the form prescribed in paragraph (e) of this section.

(d) Cases involving national security. In all cases involving national security or foreign relations of the United States, the cognizant officer exercising general court-martial jurisdiction shall forward any proposed grant of immunity to the Judge Advocate General for the purpose of consultation with the Department of Justice. See section 0126 of the Manual of the Judge Advocate General regarding relations between the Departments of Defense and Justice. The cognizant officer exercising general court-martial jurisdiction may obtain approval by the Attorney General of a proposed grant of immunity by directing a letter requesting the assistance of the Judge Advocate General (Code 20) in the form prescribed in paragraph (e) of this section.

(e) Content of immunity requests. In all cases in which approval of the Attorney General of the United States is required prior to the issuance of a grant of immunity, whether under paragraph (c) or (d) of this section, the cognizant officer exercising general court-martial jurisdiction shall forward by message or letter the proposed order to testify and grant of immunity to the Judge Advocate General (Code 20). The order to testify should be substantially in the form set forth in appendix A-1-i(3) of the Manual of the Judge Advocate General. Requests for assistance shall be in writing, should allow at least three weeks for consideration, and must contain the following information:

(1) Name, citation, or other identifying information of the proceeding in which the order is to be used.

(2) Name of the witness for whom the immunity is requested.

(3) Name of the employer or company with which a witness is associated or the military unit or organization to which a witness is assigned.

(4) Date and place of birth, if known, of the witness.

(5) FBI or local police file number, if any, and if known.

(6) Whether any State or Federal charges are pending against the witness and the nature of the charges.

(7) Whether the witness is currently incarcerated, under what conditions, and for what length of time.

(8) A brief resume of the background of the investigation or proceeding before the agency or department.

(9) A concise statement of the reasons for the request, including:

(i) What testimony the witness is expected to give;

(ii) How this testimony will serve the public interest;

(iii) Whether the witness:

(A) Has invoked the privilege against self-incrimination; or

(B) Is likely to invoke the privilege;

(iv) If paragraph (e)(9)(iii)(B) of this section is applicable, then why it is anticipated that the prospective witness will invoke the privilege.

(10) An estimate as to whether the witness is likely to testify in the event immunity is granted.

(f) Post-testimony procedure. After a witness immunized in accordance with paragraphs (c) and (d) of this section has testified, the following information should be provided to the United States Department of Justice, Criminal Division, Immunity Unit, Washington, DC 20530, via the Judge Advocate General (Code 20).

(1) Name, citation, or other identifying information, of the proceeding in which the order was requested.

(2) Date of the examination of the witness.

(3) Name and residence address of the witness.

(4) Whether the witness invoked the privilege.

(5) Whether the immunity order was used.

(6) Whether the witness testified pursuant to the order.

(7) If the witness refused to comply with the order, whether contempt proceedings were instituted, or are contemplated, and the result of the contempt proceeding, if concluded. A verbatim transcript of the witness’ testimony, authenticated by the military judge, should be provided to the Judge Advocate General at the conclusion of the trial. No testimony or other information given by a civilian witness pursuant to such an order to testify (or any information directly or indirectly derived from such testimony or other information) may be used against him in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.

(g) Review. Under some circumstances, the officer granting immunity to a witness may be disqualified from taking reviewing action on the record of the trial before which the witness granted immunity testified. A successor in command not participating in the grant of immunity would not be so disqualified under those circumstances.

(h) Form of grant. In any case in which a military witness is granted transactional immunity, the general court-martial convening authority should execute a written grant, substantially in the form set forth in appendix section A-1-i(1) of the Manual of the Judge Advocate General. In any case in which a military witness is granted testimonial immunity, the general court-martial convening authority should execute a written grant substantially in the form set forth in appendix section A-1-i(2) of the Manual of the Judge Advocate General.

(a) Release of information—(1) General. There are valid reasons for making information available to the public concerning the administration of military justice. The task of striking a fair balance among the protection of individuals accused of offenses, improper or unwarranted publicity pertaining to their cases, public understanding of the problems of controlling misconduct in the military service, and the workings of military justice requires the exercise of sound judgment by those responsible for administering military justice and by representatives of the press and other news media. At the heart of all guidelines pertaining to the furnishing of information concerning an accused or the allegations against him is the mandate that no statements or other information shall be furnished to news media for the purpose of influencing the outcome of an accused's trial, or which could reasonably be expected to have such an effect.

(2) Applicability of regulations. These regulations apply to all persons who may obtain information as the result of duties performed in connection with the processing of accused persons, the investigation of suspected offenses, the imposition of nonjudicial punishment, or the trial of persons by court-martial. These regulations are applicable from the time of apprehension, the preferral of charges, or the commencement of an investigation directed to make recommendations concerning disciplinary action, until the imposition of nonjudicial punishment, completion of trial (court-martial sessions) or disposition of the case without trial. These regulations also prescribe guidelines for the release or dissemination of information to public news agencies, to other public news media, or to other persons or agencies for unofficial purposes.

(3) Release of information. (i) As a general matter, release of information pertaining to accused persons should not be initiated by persons in the naval service. Information of this nature should be released only upon specific request therefor, and, subject to the following guidelines, should not exceed the scope of the inquiry concerned.

(ii) Except in unusual circumstances, information which is subject to release under the regulation should be released by the cognizant public affairs officer; requests for information received from representatives of news media should be referred to the public affairs office for action. When an individual is suspected or accused of an offense, care should be taken to indicate that the individual is alleged to have committed or is suspected or accused of having committed an offense, as distinguished from stating or implying that the accused has committed the offense or offenses.

(4) Information subject to release. On inquiry, the following information concerning a person accused or suspected of an offense or offenses may generally be released except as provided in paragraph (6) of this section:

(ii) The substance of the offenses of which the individual is accused or suspected.

(iii) The identity of the victim of any alleged or suspected offense, except the victim of a sexual offense.

(iv) The identity of the apprehending and investigative agency, and the identity of accused's counsel, if any.

(v) The factual circumstances immediately surrounding the apprehension of the accused, including the time and place of apprehension, resistance, pursuit, and use of weapons.

(vi) The type and place of custody, if any.

(vii) Information which has become a part of the record of proceedings of the court-martial in open session.

(viii) The scheduling of any stage in the judicial process.

(ix) The denial by the accused of any offense or offenses of which he may be accused or suspected (when release of such information is approved by the counsel of the accused).

(5) Prohibited information. The following information concerning a person accused or suspected of an offense or offenses generally may not be released, except as provided in paragraph (a)(6) of this section.

(i) Subjective opinions, observations, or comments concerning the accused's character, demeanor at any time (except as authorized in paragraph (4)(v) of this section), or guilt of the offense or offenses involved.

(ii) The prior criminal record (including other apprehensions, charges or trials) or the character or reputation of the accused.

(iii) The existence or contents of any confession, admission, statement, or alibi given by the accused, or the refusal or failure of the accused to make any statement.

(iv) The performance of any examination or test, such as polygraph examinations, chemical tests, ballistics tests, etc., or the refusal or the failure of the accused to submit to an examination or test.

(v) The identity, testimony, or credibility of possible witnesses, except as authorized in paragraph (4)(iii), of this section.

(vi) The possibility of a plea of guilty to any offense charged or to a lesser offense and any negotiation or any offer to negotiate respecting a plea of guilty.

(vii) References to confidential sources or investigative techniques or procedures.

(viii) Any other matter when there is a reasonable likelihood that the dissemination of such matter will affect the deliberations of an investigative body or the findings or sentence of a court-martial or otherwise prejudice the due administration of military justice either before, during, or after trial.

(6) Exceptional cases. The provisions of this section are not intended to restrict the release of information designed to enlist public assistance in apprehending an accused or suspect who is a fugitive from justice or to warn the public of any danger that a fugitive accused or suspect may present. Further, since the purpose of this section is to prescribe generally applicable guidelines, there may be exceptional circumstances which warrant the release of information prohibited under paragraph (a)(5) of this section or the nonrelease of information permitted under paragraph (a)(4) of this section. Attention should be given to the Secretary of the Navy instructions implementing the Freedom of Information Act (5720.42 series) and the Privacy Act (5211.5C series). Consultation with the command judge advocate, if one is assigned, or with the cognizant Naval Legal Service Office concerning interpretation and application of these instructions is encouraged.

(b) Spectators. (1) The sessions of courts-martial shall be open to the public, which includes members of both the military and civilian communities. In order to maintain the dignity and decorum of the proceedings or for other good cause, the military judge may reasonably limit the number of spectators in, and the means of access to, the courtroom, exclude specific persons from the courtroom, and close a session. Video and audio recording and taking of photographs, except for the purpose of preparing the record of trial, in the courtroom during the proceedings and radio or television broadcasting of proceedings from the courtroom shall not be permitted. The military judge may, as a matter of discretion, permit contemporaneous closed-circuit video or audio transmission to permit viewing or hearing by an accused removed from the courtroom or by spectators when courtroom facilities are inadequate to accommodate a reasonable number of spectators.

(2) At pretrial hearings. In any preliminary hearing, including a hearing conducted pursuant to 10 U.S.C. 832 or a court of inquiry or investigation conducted pursuant to the Manual of the Judge Advocate General, the presiding officer, upon motion of the Government or the defense or upon his motion, may direct that all or part of the hearing be held in closed session and that all persons not connected with the hearing be excluded therefrom. The decision to exclude spectators shall be based on the ground that dissemination of evidence, information, or argument presented at the hearing may disclose matters that will be inadmissible in evidence at a subsequent trial by court-martial and is therefore likely to interfere with the right of the accused to a fair trial by an impartial tribunal.

(a) Method of Payment. The fees and mileage of a civilian witness shall be paid by the disbursing officer of the command of a convening authority or appointing authority or by the disbursing officer at or near the place where the tribunal sits or where a deposition is taken when such disbursing officer is presented a properly completed public voucher for such fees and mileage, signed by the witness and certified by one of the following:

(1) Trial counsel or assistant trial counsel of the court-martial;

(2) Summary court officer;

(3) Counsel for the court in a court of inquiry;

(4) Recorder or junior member of a board to redress injuries to property, or

(5) Military or civil officer before whom a deposition is taken.

The public voucher must be accompanied by a subpoena or invitational orders (Joint Travel Regulations, vol. 2, chap. 6), and by a certified copy of the order appointing the court-martial, court of inquiry, or investigation. If, however, a deposition is taken before charges are referred for trial, the fees and mileage of the witness concerned shall be paid by the disbursing officer at or near the place where the deposition is taken upon presentation of a public voucher, properly completed as hereinbefore prescribed, and accompanied by an order from the officer who authorized the taking of the deposition, subscribed by him and directing the disbursing officer to pay to the witness the fees and mileage supported by the public voucher. When the civilian witness testifies outside the United States, its territories and possessions, the public voucher must be accompanied by a certified copy of the order appointing the court-martial, court of inquiry, or investigation, and by an order from the convening authority or appointing authority, subscribed by him and directing the disbursing officer to pay to the witness the fees and mileage supported by the public voucher.

(b) Obtaining money for advance tender or payment. Upon written request by one of the officers listed in paragraph (a) of this section, the disbursing officer under the command of the convening or appointing authority, or the disbursing officer nearest the place where the witness is found, will, at once, provide any of the persons listed in paragraph (a) of this section, or any other officer or person designated for the purpose, the required amount of money to be tendered or paid to the witness for mileage and fees for one day of attendance. The person so receiving the money for the purpose named shall furnish the disbursing officer concerned with a proper receipt.

(c) Reimbursement. If an officer charged with serving a subpoena pays from his personal funds the necessary fees and mileage to a witness, taking a receipt therefor, he is entitled to reimbursement upon submitting to the disbursing officer such receipt, together with a certificate of the appropriate person named in paragraph (a) of this section, to the effect that the payment was necessary.

(d) Certificate of person before whom deposition is taken. The certificate of the person named in paragraph (a) of this section, before whom the witness gave his deposition, will be evidence of the fact and period of attendance of the witness and the place from which summoned.

(e) Payment of accrued fees. The witness may be paid accrued fees at his request at any time during the period of attendance. The disbursing officer will make such interim payment(s) upon receipt of properly executed certificate(s). Upon his discharge from attendance, the witness will be paid, upon the execution of a certificate, a final amount covering unpaid fees and travel, including an amount for return travel. Payment for return travel will be made upon the basis of the actual fees and mileage allowed for travel to the court, or place designated for taking a deposition.

(f) Computation. Travel expenses shall be determined on the basis of the shortest usually traveled route in accordance with official schedules. Reasonable allowance will be made for unavoidable detention.

(g) Nontransferability of accounts. Accounts of civilian witnesses may not be transferred or assigned.

(h) Signatures. Signatures of witnesses signed by mark must be witnessed by two persons.

(i) Rates for civilian witnesses prescribed by law—(1) Civilian witnesses not in Government employ. A civilian not in Government employ, who is compelled or required to testify as a witness before a Naval tribunal at a specified place or to appear at a place where his deposition is to be taken for use before a court or fact-finding body, will receive fees, subsistence, and mileage as provided in 28 U.S.C. 1821. Witness and subsistence fees are not prorated. Instead any fractional part of a calendar day expended in attendance or qualifying for subsistence entitles the witness to payment for a full day. Further, nothing in this paragraph shall be construed as authorizing the payment of attendance fees to witnesses for:

(i) Attendance or travel which is not performed either as a direct result of being compelled to testify pursuant to a subpoena or as a direct result of invitational orders; or

(ii) For travel which is performed prior to being duly summoned as a witness; or

(iii) For travel returning to their places of residence if the travel from their places of residence does not qualify for payment under this paragraph.

(2) Civilian witnesses in Government employ. When summoned as a witness, a civilian in the employ of the Government shall be paid as authorized by Joint Travel Regulations.

(j) Supplemental construction of section. Nothing in this paragraph shall be construed as permitting or requiring the payment of fees to those witnesses not requested or whose testimony is determined not to meet the standards of relevancy and materiality set forth in accordance with MCM, 1984, R.C.M. 703.

(k) Expert witnesses. (1) The convening authority will authorize the employment of an expert witness and will fix the limit of compensation to be paid such expert on the basis of the normal compensation paid by United States attorneys for attendance of a witness of such standing in United States courts in the area involved. Information concerning such normal compensation may be obtained from the nearest officer exercising general court-martial jurisdiction having a judge advocate assigned in other than an additional duty, temporary duty, or temporary additional duty capacity. Convening authorities at overseas commands will adhere to fees paid such witnesses in the Hawaiian area and may obtain information as to the limit of such fees from the Commander, Naval Base, Pearl Harbor. See paragraph (l) of this section for fees payable to foreign nationals.

(2) The provisions of paragraph (i) of this section are applicable to expert witnesses. However, the expert witness fee prescribed by the convening authority will be paid in lieu of ordinary attendance fees on those days the witness is required to attend the court.

(3) An expert witness employed in strict accordance with MCM, 1984, R.C.M. 703(d), may be paid compensation at the rate prescribed in advance by the official empowered to authorize his employment (11 Comp. Gen. 504). In the absence of such authorization, no fees other than ordinary witness fees may be paid for the employment of an individual as an expert witness. After an expert witness has testified pursuant to such employment, the certificate of one of the officers listed in subsection a above, when presented to the disbursing officer, shall also enclose a certified copy of the authorization of the convening authority.

(l) Payment of witness fees to foreign nationals: Officers exercising general court-martial jurisdiction in areas other than a State of the United States shall establish rates of compensation for payment of foreign nationals who testify as witnesses, including expert witnesses, at courts-martial convened in such areas.

(a) Report of Allegations of Misconduct or Disability. When information comes to the attention of a member of a court-martial, a military judge, trial or defense counsel, staff judge advocate, member of the Navy-Marine Corps Court of Military Review or other directly interested or concerned party that a judge advocate or civilian who is acting or is about to act as counsel before a proceeding conducted under the UCMJ or MCM is or has been unable to discharge properly all the duties of his or her position by reason of mental or physical disability or has been engaged in professional or personal misconduct of such a serious nature as to demonstrate that he or she is lacking in integrity or is failing to meet the ethical standards of the profession or is otherwise unworthy or unqualified to perform the duties of a judge advocate or attorney, such information should be reported to the commanding officer of that judge advocate or, in the case of civilian counsel, to the officer exercising general court-martial jurisdiction over the command convening the proceedings or to the Judge Advocate General.

(b) Form of Report. The report shall:

(1) Be in writing, under oath or affirmation, and made and signed by the individual reporting the information.

(2) State that the individual reporting the information has personal knowledge or belief or has otherwise received reliable information indicating that:

(i) The counsel is, or has been, unable to discharge properly all the duties of his or her office by reason of mental or physical disability; or

(ii) The counsel is or has been engaged in professional or personal misconduct of such a serious nature as to demonstrate that he or she is lacking in integrity or is failing to meet the ethical standards of the profession; or

(iii) The counsel is unworthy or unqualified to perform his or her duties;

(3) Set forth the grounds of the allegation together with all relevant facts; and

(4) Be forwarded to the appropriate authority as set forth in paragraph (a).

(c) Consideration of the Report—(1) Action by the Commanding Officer of a judge advocate. Upon receipt of the report, the commanding officer:

(i) Shall dismiss any report relating to the performance of a judge advocate more properly appealed under law or any report that is frivolous, unfounded, or vague and return it to the reporting individual;

(ii) May make further inquiry into the report at his or her discretion to determine the merits of the report. The commanding officer may appoint an officer to investigate informally the allegations of the report to determine whether further action is warranted. Any officer so appointed should be a judge advocate senior in rank to the judge advocate being investigated;

(iii) May take appropriate action to address and dispose of the matter being mindful of such measures as warning, counseling, caution, instruction, proceedings in contempt, therapy, and other punitive or administrative action; or

(iv) Shall, if the commanding officer is of the opinion that evidence of disability or professional or personal misconduct exists, and that remedial measures short of suspension or decertification are not appropriate or will not be effective, forward the original complaint, a written report of the inquiry or investigation, all other relevant information, and his or her comments and recommendations to the officer in the chain of command exercising general court-martial authority.

(2) Action by Officer Exercising General Court-Martial Authority. (i) Upon receipt of a report of an allegation of misconduct or disability of a counsel, the officer exercising general court-martial convening authority:

(A) May take the action authorized by subsections (c)(1)(i), (ii) or (iii); or

(B) Shall, if he or she considers that evidence of disability or professional or personal misconduct exists and that other remedial measures short of suspension or decertification are not appropriate or will not be effective, appoint a board of officers to investigate the matter and to report its findings and its recommendations. This board shall be comprised of at least three officers, each an Article 27(b), Uniform Code of Military Justice, certified judge advocate. If practicable, each of the officers of the board should be senior to the judge advocate under investigation. If the counsel is a member of the Marine Corps, a majority of the members of the board should be Marine Corps judge advocates. The senior officer of the board shall cause notice to be given to the counsel, judge advocate or civilian (respondent), informing him or her of the misconduct or other disqualification alleged and affording him or her the opportunity to appear before the board for a hearing. The respondent shall be permitted at least ten (10) days’ notice prior to the hearing. Failure to appear on a set date after notice shall constitute waiver of appearance, absent good cause shown. The respondent shall be generally afforded the rights of a party as set out in section 0304 of this Manual, except that, in the event the judge advocate respondent wishes to have military counsel appointed, he or she shall not have the right to select or identify a particular military counsel. A civilian respondent may not be represented by military counsel, but may be represented by civilian counsel at no expense to the Government. Upon ascertaining the relevant facts after notice and hearing, a written report of the findings and recommendations of the board shall be made to the officer who convened the board. In all cases, a written copy of the board's findings and recommendations shall be provided to the respondent. The respondent shall be given an opportunity to comment on the report in writing.

(ii) Upon receipt of the report of the board of investigation, the officer exercising general court-martial authority shall:

(A) Return the report to the board for further investigation, if the investigation is determined to be incomplete; or

(B) Forward the report of the board of investigation to the Judge Advocate General together with comments and recommendations concerning suspension of the counsel involved.

(3) Action by the Judge Advocate General. (i) Upon receipt of a report of an allegation of misconduct or disability of a counsel, the Judge Advocate General:

(A) May take the action authorized by subsections (c)(1)(i), (ii), or (iii);

(B) May appoint a board of officers for investigation and hearing in accordance with subsections (c)(2)(i)(B) or

(C) May request the officer exercising general court-martial jurisdiction over the command of the respondent (if judge advocate counsel) or over the proceedings (if civilian counsel) to take the matter for investigation and hearing in accordance with subsection (c)(2)(i)(B).

(ii) Upon receipt of the report of the investigating board, the Judge Advocate General:

(A) May determine whether the respondent is to be suspended or decertified and, if so, whether for a stated term or indefinitely;

(B) May determine that the findings of the board do not warrant further action; or

(C) May return the report to the sending officer with appropriate instructions for further inquiry or action. The Judge Advocate General may, sua sponte, or upon petition of the respondent, modify or revoke any prior order of suspension or dismissal of a report. Further, if the Judge Advocate General suspends counsel, the Judge Advocates General of the other armed forces will be notified.

(d) Grounds justifying suspension of counsel or suspension or decertification of a Judge Advocate. (1) Suspension or decertification is to be employed only after it has been established that a counsel has been unable to discharge properly all the duties of his or her office by reason of mental or physical disability or has been engaged in professional or personal misconduct of such a serious nature as to demonstrate that he or she is lacking in integrity or is failing to meet the ethical standards of the profession or is otherwise unworthy or unqualified to perform the duties of a counsel Action to suspend or decertify should not be initiated because of personal prejudice or hostility toward counsel, nor should such action be initiated because counsel has initiated an aggressive, zealous or novel defense, or the apparent misconduct stems from inexperience or lack of instruction.

(2) Specific grounds for suspension or decertification include, but are not limited to, the following:

(i) Demonstrated incompetence while acting as counsel before, during or after a court-martial.

(ii) Preventing or obstructing justice, including the deliberate use of frivolous or unwarranted dilatory tactics.

(iii) Fabricating papers or other evidence.

(iv) Tampering with a witness.

(v) Abusive conduct toward the court-martial, the Navy-Marine Corps Court of Military Review, the military judge, or opposing counsel.

(vi) Flagrant or repeated violations of any specific rules of conduct prescribed for counsel in the Manual for Courts-Martial.

(vii) Conviction of an offense involving moral turpitude or conviction for violation of article 48, UCMJ.

(viii) Disbarment by a State Bar, Federal Court, or the United States Court of Military Appeals.

(ix) Suspension as counsel by the Judge Advocate General of the Navy, Army, or Air Force or the General Counsel of the Department of Transportation.

(x) Flagrant or repeated violations of the Uniform Rules of Practice Before Navy-Marine Corps Courts-Martial as outlined in appendix A-1-p(1) of the Manual of the Judge Advocate General.

(xi) Flagrant or repeated violations of the provisions of section 0134 of this Manual of the Judge Advocate General dealing with the Release of Information Pertaining to Accused Persons; Spectators at Judicial Sessions.

(xii) Failure to meet the rules set forth in the ABA Code of Professional Responsibility and the ABA Standards on Fair Trial and Free Press and The Prosecution Function and the Defense Function. In view of the unique mission and personal requirements of the military, many of the rules and principles of the ABA Code or Standards are not applicable to the military lawyer. Accordingly, the rules are to be used as a guide only, and a failure to comply with the specific wording of a rule is not to be construed as a violation of the rule where common sense would indicate to a reasonable person that there is a distinction between the civilian context, which the codes were drafted to embrace, and the unique concerns of the military setting, where the codes serve as a general guide.

(a) Statutory provisions. 10 U.S.C. 873, provides, “At any time within 2 years after approval by the convening authority of a court-martial sentence, the accused may petition the Judge Advocate General for a new trial on the grounds of newly discovered evidence or fraud on the court. If the accused's case is pending before a Court of Military Review or before the Court of Military Appeals, that Judge Advocate General shall refer the petition to the appropriate court for action. Otherwise the Judge Advocate General shall act upon the petition.”

(b) Submission Procedures: At any time within 2 years after approval by the convening authority of a court-martial sentence, the accused may petition the Judge Advocate General for a new trial on the ground of newly discovered evidence or fraud on the court-martial. The petition for new trial may be submitted by the accused personally, or by accused's counsel, regardless of whether the accused has been separated from the service. A petition may not be submitted after the death of the accused.

(c) Contents of petitions: The form and contents of petitions for new trial are specified in MCM, 1984, R.C.M. 1210(c). The petition for a new trial shall be written and shall be signed under oath or affirmation by the accused, by a person possessing the power of attorney of the accused for that purpose, or by a person with the authorization of an appropriate court to sign the petition as the representative of the accused. The petition shall contain the following information, or an explanation why such matters are not included:

(1) The name, service number, and current address of the accused;

(2) The date and location of the trial;

(3) The type of court-martial and the title or position of the convening authority;

(4) The request for the new trial;

(5) The sentence or a description thereof as approved or affirmed, with any later reduction thereof by clemency or otherwise,

(6) A brief description of any finding or sentence believed to be unjust;

(7) A full statement of the newly discovered evidence or fraud on the court-martial which is relied upon for the remedy sought;

(8) Affidavits pertinent to the matters in subsection (6)i; and

(9) Affidavit of each person whom the accused expects to present as a witness in the event of a new trial. Each affidavit should set forth briefly the relevant facts within the personal knowledge of the witness.

(d) Who may act on petition. If the accused's case is pending before a Court of Military Review or the Court of Military Appeals, the Judge Advocate General shall refer the petition to the appropriate court for action. Otherwise, the Judge Advocate shall act on the petition.

(e) Ground for New Trial. A new trial may be granted only on grounds of newly discovered evidence or fraud on the court-martial.

(1) A new trial shall not be granted on the grounds of newly discovered evidence unless the petition shows that;

(i) The evidence was discovered after the trial,

(ii) The evidence is not such that it would have been discovered by the petitioner at the time of trial in the exercise of due diligence; and

(iii) The newly discovered evidence, if considered by a court-martial in the light of all other pertinent evidence, would probably produce a substantially more favorable result for the accused.

(2) No fraud on the court-martial warrants a new trial unless it had a substantial contributing effect on a finding of guilty or the sentence adjudged.

(f) Action on the petition. (1) The authority considering the petition may cause such additional investigation to be made and such additional information to be secured as that authority believes appropriate. Upon written request, and in his discretion, the authority considering the petition may permit oral argument on the matter.

(2) When a petition is considered by the Judge Advocate General, any hearing may be before the Judge Advocate General or before an officer or officers designated by the Judge Advocate General.

(3) If the Judge Advocate General believes meritorious grounds for relief under Article 74, Uniform Code of Military Justice have been established but that a new trial is not appropriate, the Judge Advocate General may act under article 74, Uniform Code of Military Justice, if authorized, or transmit the petition and related papers to the Secretary concerned with a recommendation.

(4) The Judge Advocate may also, in cases which have been finally reviewed but have not been reviewed by a Court of Military Review, act under article 69, Uniform Code of Military Justice.

[50 FR 23803, June 6, 1985]§ 719.144Application for relief under 10 U.S.C. 869, in cases which have been finally reviewed.

(a) Statutory provisions. 10 U.S.C. 869 provides in pertinent part, “The findings or sentence, or both, in a court-martial case not reviewed under subsection (a) or under section 866 of this title (article 66) may be modified or set aside, in whole or in part, by the Judge Advocate General on the ground of newly discovered evidence, fraud on the court, lack of jurisdiction over the accused or the offense, error prejudicial to the substantial rights of the accused, or the appropriateness of the sentence. If such a case is considered upon application of the accused, the application must be filed in the Office of the Judge Advocate General by the accused on or before the last day of the two-year period beginning on the date the sentence is approved under section 860(c) of this title (article 60(c)), unless the accused establishes good cause for failure to file within that time.”

(b) Time Limitations. In order to be considered by the Judge Advocate General, an application for relief must be placed in military channels if the applicant is on active duty, or be deposited in the mail if the applicant is no longer on active duty, on or before the last day of the two-year period beginning on the date the sentence is approved by the convening authority. An application not filed in compliance with these time limits may be considered if the Judge Advocate General determines, in his or her sole discretion, that “good cause” for failure to file within the time limits has been established by the applicant.

(c) Submission procedures. Applications for relief may be submitted to the Judge Advocate General by letter. If the accused is on active duty, the application shall be submitted via the applicant's commanding officer, and the command that convened the court, and the command that reviewed the case under 10 U.S.C. 864(a) or (b). If the original record of trail is held by the command that reviewed the case under 10 U.S.C. 864(a) or (b), it shall be forwarded as a enclosure to the endorsement. If the original record of trial has been filed in the National Personnel Records Center, the endorsement will include all necessary retrieval data (accession number, box number, and shelf location) obtained from the receipt returned from the National Personnel Records Center to the sending activity. This endorsement shall also include information and specific comment on the grounds for relief asserted in the application, and an opinion on the merits of the application. If the applicant is no longer on active duty, the application may be submitted directly to the Judge Advocate General.

(d) Contents of applications. All applications for relief shall contain:

(1) Full name of the applicant;

(2) Social Security number and branch of service, if any;

(3) Present grade if on active duty or retired, or “civilian” or “deceased” as applicable;

(4) Address at time the application is forwarded;

(5) Date of trial;

(6) Place of trial;

(7) Command title of the organization at which the court-martial was convened (convening authority);

(8) Command title of the officer exercising review authority in accordance with 10 U.S.C. 864 over the applicant at the time of trial, if applicable;

(9) Type of court-martial which convicted the applicant, and sentence adjudged;

(10) General grounds for relief which must be one or more of the following:

(i) Newly discovered evidence;

(ii) Fraud on the court;

(iii) Lack of jurisdiction over the accused or the offense;

(iv) Error prejudicial to the substantial rights of the accused;

(v) Appropriateness of the sentence;

(11) An elaboration of the specific prejudice resulting from any error cited. (Legal authorities to support the applicant's contentions may be included, and the format used may take the form of a legal brief if the applicant so desires.);

(12) Any other matter which the applicant desires to submit;

(13) Relief requested; and

(14) Facts and circumstances to establish “good cause” for a failure to file the application within the time limits prescribed in paragraph (b) of this section, if applicable; and

(15) If the application is signed by a person other than the applicant pursuant to subsection e, an explanation of the circumstances rendering the applicant incapable of making application. The applicant's copy of the record of trial will not be forwarded with the application for relief, unless specifically requested by the Judge Advocate General.

(e) Signatures on applications. Unless incapable of making application, the applicant shall personally sign the application under oath before an official authorized to administer oaths. If the applicant is incapable of making application, the application may be signed under oath and submitted by the applicant's spouse, next of kin, executor, guardian or other person with a proper interest in the matter. In this regard, one is considered incapable of making application for purposes of this section when unable to sign the application under oath due to physical or mental incapacity.

The Department of the Navy Corrections Manual, SECNAVINST 1640.9, reiterates the requirement of Article 10, UCMJ, that, when a person is placed in pretrial confinement, immediate steps should be taken to inform the confinee of the specific wrong of which he is accused and try him or to dismiss the charges and release him. The Corrections Manual requires that this information normally will be provided within 48 hours along with advice as to the confinee's right to consult with lawyer counsel and his right to prepare for trial. Lawyer counsel may be either a civilian lawyer provided by the confinee at his own expense or a military lawyer provided by the Government. If a confinee requests to confer with a military lawyer, such lawyer should normally be made available for consultation within 48 hours after the request is made.

[39 FR 18437, May 28, 1974]§ 719.155Application under 10 U.S.C. 874(b) for the substitution of an administrative form of discharge for a punitive discharge or dismissal.

(a) Statutory provisions. 10 U.S.C. 874(b) provides that the “Secretary concerned may, for good cause, substitute an administrative form of discharge for a discharge or dismissal executed in accordance with the sentence of a court-martial.”

(b) Submission procedures. Applications for relief will be submitted to the Secretary using the following address: Secretary of the Navy (Judge Advocate General, Code 20), 200 Stovall Street, Alexandria, VA 22332-2400. Except in unusual circumstances, applications will not normally be considered if received within five (5) years of the execution of the punitive discharge or dismissal, or within five (5) years of disapproval of a prior request under 10 U.S.C. 874(b).

(c) Contents of the application. All applications shall contain:

(1) Full name of the applicant;

(2) Social Security Number, service number (if different), and branch of service of the applicant;

(3) Present age and date of birth of the applicant;

(4) Present residence of the applicant;

(5) Date and place of the trial, and type of court-martial which resulted in the punitive discharge or dismissal;

(6) Command title of the convening authority of the court-martial which resulted in the punitive discharge or dismissal;

(7) Offense(s) of which the applicant was convicted, and sentence finally approved from the trial which resulted in the punitive discharge or dismissal;

(8) Date the punitive discharge or dismissal was executed;

(9) Applicant's present marital status, and number and ages of dependents, if any;

(10) Applicant's civilian criminal record (arrest(s) with disposition, and conviction(s)), both prior and subsequent to the court-martial which resulted in the punitive discharge or dismissal;

(11) Applicant's entire court-martial record (offense(s) of which convicted and finally approved sentence(s)), and nonjudicial punishment record (including offense(s) and punishment(s) awarded);

(12) Any military administrative discharge proceedings (circumstances and disposition) initiated against the applicant;

(13) Applicant's full employment record since the punitive discharge or dismissal was executed;

(14) The specific type and character of administrative discharge requested pursuant to 10 U.S.C. 874(b) (a more favorable administrative discharge than that requested will not be approved);

(15) At least three but not more than six character affidavits, (The character affidavits must be notarized, must indicate the relationship of the affiant to the applicant, and must include the address of the affiant as well as specific reasons why the